On 9 May 1941 he was made Chief of Staff of the XIIth Army they commanded by Fieldmarshal List. With the appointment of Fieldmarshal List as Wehrmacht Commander Southeast, be became Chief of Staff to the Wehrmacht Commander Southeast and served in this position during the tenures of Fieldmarshal List and Lieutenant General Kuntze. In August 1942 he became Chief of Staff Army Group E then commended by Fieldmarshal von Weichs, a position he held until 4 March 1943 at which time his service in the Southeast came to an end. It will be observed that the whole period of his stay in the Southeast was in the capacity of Chief of Staff of the Army Group commanding the territory.
The Chief of Staff was in charge of the various departments of the staff and was the first advisor of the Commander-in-Chief. It was his duty to provide all basic information for decisions by the Commander-in-Chief and was responsible for the channelling of all reports and orders. He had no troop command authority. Neither did he have any control over the legal department which was directly subordinate to the Commander-in-Chief. As Chief of Staff he was authorized to sign orders on behalf of the Commander-in-chief when they did not contain any fundamental decision and which did not require the exercise of judgment by the subordinate to whom it was directed.
From the time Foertsch became Chief of Staff to the Wehrmacht Commander Southeast until late August, 1941, the population remained comparatively quiet. Signs of insurrection began to appear during the latter part of August which caused considerable concern. It was the opinion of Fieldmarshal List that additional troops were needed to cope with the situation.
His requests along this line were refused by the High Command. About 20 September 1941, Foertsch called upon Fieldmarshal Keitel, Chief of the High Command, and set forth the views of Fieldmarshal List concerning the situation in the Balkans. The views advanced by Foertsch were unequivocally rejected by that who asserted that List's responsibility was to obey which had been ordered. It appears therefore that the High Command had fixed upon a campaign of severity and intimidation as a substitute for an adequate number of troops. The contention had been advanced that with adequate troops, the shootings of hostages and reprisal prisoners would not have been necessary from any point of view. The defendant Foertsch asserts, however, that with adequate troops, reprisals against the population would still have been necessary. This view is based on the fact that reprisal measures are dependent upon the attitude of the population which, in any event, would have been incited to commit acts of sabotage and other senseless actions by certain hostile influences within and without the country. It is the opinion of this defendant that reprisal measures against the population were unavoidable under such circumstances.
On 5 September 1941, Fieldmarshal List's order on the Suppression of the Serbian Insurrection Movement, which was quoted in part in the portion of the opinion dealing with the defendant List, was issued. On 16 September 1941, the Keitel order fixing reprisal ratios of 50 to 100 to 1 was issued and distributed. Also on 13 September 1941, Lieutenant General Boehme was placed in charge of military operations in Serbia. During the occurrence of these events, the defendant Foertsch was on leave and became familiar with them upon his return in the latter cart of September 1941.
It is the testimony of Foertsch that the Keitel order of 16 September 1941, fixing reprisal ratios from 50 up to 100 to 1, was the basic order under which reprisal measures were carried out in the Southeast. The evidence shows the following reprisal measures which were executed prior to the Keitel order and on the reports of which the signature or initials of the defendant Foertsch appear: On 16 July 1941, for sabotage in Obrenovac, 10 communists shot to death. In Palanka communists were caught while putting up posters, one was shot and two arrested. On 25 July 1941, two attempts to destroy German motor vehicles with bottles filled with gasoline were reported in reprisal for which 100 Jews were to be shot. On 28 July 1941, 80 were shot to death in reprisal for an attack on a police patrol and 122 communists and Jews were shot in Belgrade for previously reported sabotage acts. On 1 August 1941, as reprisal for previously reported unrest near Petrovgrad, 90 communists were shot there. On 6 August 1941, 4 plotters and 90 communists and Jewish hostages were shot in Zagreb. On 7 August 1941, the shooing of an additional 87 communists and Jewish hostages was reported. Other similar reports appear in the record. These occurrences came to the attention of Foertsch as Chief of Staff before the High Command had issued any orders to the Wehrmacht Commander Southeast pertaining thereto. In other words, these killings took place before any basic order had been issued by any officer superior to Fieldmarshal List.
On 28 September 1941, Keitel's order on the Taking of Hostages was distributed. Parts of this order are quoted in the portion of the opinion dealing with the defendant List.
This order was passed on to subordinate commanders at the direction of his commanding general. The signature of Foertsch appears on the order in his capacity as Chief of Staff.
The evidence clearly shows that the reports of units subordinate to the Wehrmacht Commander Southeast invariably came to the attention of the defendant Foertsch if they had strategic or operational importance. It was only when he was on leave or absent on outside assignments that such reports did not come to his notice. For all practical purposes, he had the same information as the defendants List and Kuntze during their tenures as Wehrmacht Commanders Southeast. He knew of the incidents held to be crimes that are recited in the portions of the opinion dealing with the defendants List and Kuntze. He was informed of the killing of hostages and reprisal prisoners. He was familiar with the illegal orders of Hitler and Keitel prescribing reprisal ratios of 50 up to 100 to 1. He gained information through reports that such ratios were being applied against the innocent members of the population. He had information that concentration or collection camps were established. He gained information through reports that Jews were transported to concentration cames for no other reason than that they were Jews, although he did not know by whose order this was done. He knew of the burning down of villages as reprisal measures. It is not necessary that all these specific acts be recapitulated here. The defendant Foertsch did not participate in any of them. He gave no orders and had no power to do so had he so desired. He did distribute some of the orders of the OKW, the OKH and of his commanding generals.
These orders will be reviewed as to their content and legality.
The order of 16 September 1941, generally referred to as the Keitel order of that date, which directed the killing of 50 to 100 members of the population for each German soldier killed, was received by the Wehrmacht Commander Southeast at a time when the defendant Foertsch was on leave. On his return he became acquainted with the order but the evidence is clear that he had no connection with its issuance or distribution.
The defendant Foertsch admits that he distributed Fieldmarshal Keitel's order of 28 September 1941 wherein it is ordered that hostages of different political persuasions such as Nationalists, Democrats and Communists be kept available for reprisal purposes and shot in case of an attack. He contends that this order was a legal one and that his distribution of it invokes no criminal responsibility.
The order of General Boehme under date of 10 October 1941 providing for the killing of 100 prisoners or hostages for each German killed and 50 for each German wounded, was known to Foertsch through the reports made to the Wehrmacht Commander Southeast. That it was repeatedly applied was also evident to him from General Boehme's reports to List and Kuntze.
The defendant Foertsch admits that he distributed General Kuntze's order of 19 March 1942 wherein it was ordered that more severe reprisal measures be taken and directed that reprisals be taken in accordance with a definite ratio "for instance 1 German dead - 100 Serbs, 1 German wounded - 50 Serbs." It is the contention of Foertsch that this order which is more fully set forth in the portion of the opinion dealing with the defendant Kuntze, was advisory only because of the use of the words "for instance" and "might" in connection with the figure 100.
He contends that this order was consistant with his position that reprisals were lawful although he personally did not approve of the high ratios to be uniformly applied.
The Commando Order of 18 October 1942 was distributed by Army Group E commanded by General Alexander Loehr and of which Foertsch was then Chief of Staff. As to this order Foertsch states that he considered this order unlawful in that it called for the commission of offenses and crimes under international law but that he assumed that the issuance of the order was in answer to similar actions by the enemy in contravention of international law. It has not been shown that the defendant knew this order was in fact carried out in the territory in which he served.
The record further shows that in July 1943, the defendant distributed a Hitler order providing that partisans should no longer be killed but treated as prisoners of war and sent to the Reich for forced labor in mines. The defendant states that as such persons were subject to the death penalty, it was not unlawful to deport them for labor service. He closes his comments on this order with the statement that he had no power to rescind, modify or palliate this order in his capacity as Chief of Staff.
The prosecution contends that Foertsch as Chief of Staff of the various Army groups successively in command in the Southeast, was a powerful and influential figure. It is insisted that he exercised this power and influence upon his various commanders-in-chief in such a manner as to incriminate himself irrespective of the fact that he had no command responsibility. The charge that a conspiracy existed which had for its purpose the decimation and annihilation of various racial and religious groups finds support in the record but it fails utterly to establish that the defendant Foertsch, or any of the Wehrmacht officers jointly charged with him, ever became a party to any such preconceived plan.
We think the evidence shows that insofar as the defendant is concerned, the actions in the Southeast were motivated by a desire to attain peace and order among the civilian population, - a matter that was essential to an adequate program of defense against an allied invasion.
The nature of the position of the defendant Foertsch as Chief of Staff, his entire want of command authority in the field, his attempts to procure the rescission of certain unlawful orders and the mitigation of others, as well as the want of direct evidence placing responsibility upon him, leads us to conclude that the prosecution has failed to make a case against the defendant. No overt act from which a criminal intent could be inferred, has been established.
That he had knowledge of the doing of acts which we have herein held to be unlawful under international law cannot be doubted. It is not enough to say that he must have been a guilty participant. It must be shown by some responsible act that he was. Many of these acts were committed by organizations over which the Wehrmacht, with the exception of the commanding general, had no control at all. Many others were carried out through regular channels over his voiced objection or passive resistance. The evidence fails to show the commission of an unlawful act which was the result of any action, affirmative or passive, on the part of this defendant. His mere knowledge of the happening of unlawful acts does not meet the requirements of criminal law.
He must be one who orders, abets or takes a consenting part in the crime. We cannot say that the defendant met the foregoing requirements as to participation. We are required to say therefore that the evidence does not show beyond a reasonable doubt that the defendant Foertsch is guilty on any of the counts charged.
The defendant von Geitner became Chief of Staff to the Commanding General in Serbia (General Paul Bader) in 10 July 1942. He continued in this position until August 1943. He thereupon became chief of the general staff with the Military Commander Serbia and Military Commander Southeast (General Hans Felber), a newly established position. He continued in this position until October 1944. During the entire period of his service in the Balkans, the defendant von Geitner served only as chief of staff. His duties generally had to do with operations, supplies, training and organization of troops. In addition to this staff, there existed an administrative staff which dealt directly with matters pertaining to the administration of Serbia and a third staff headed by the Plenipotentiary for Economy. While the persons in charge of the latter two staffs were personally subordinate to the military commander, the first received orders direct from superiors in Berlin and the second received orders from the administrators of the Goering Four Year Plan.
In addition, there was a Higher SS and Police Leader in the territory who had charge of police units and the police security program. He, too, was subordinate to the military commander personally, but received his general orders from the Reich Fuehrer SS directly. The police troops were subordinate to the commanding general only when needed for tactical commitment. These devious command channels with their overlapping powers were a constant source of trouble to the commanding general. A complete understanding of the nature of the subordination of each to the Wehrmacht Commander is necessary to the fixing of the responsibility, if any, that may be charged to the officers of the Wehrmacht. The burden rests upon the prosecution to establish the responsibility of the defendant von Geitner in ordering, aiding, abetting or taking a consenting part in the crimes charged against him.
The general allegations against the defendant von Geitner follow the pattern of those charged against the defendant Foertsch and insofar as identical situations are concerned, the discussion will not be here repeated. There is one situation here involved that was not discussed at length in the case against the defendant Foertsch. The evidence shows that defendant von Geitner initialed or signed orders issued by his commanding general for the shooting of hostages and reprisal prisoners which were unlawful when viewed in the light of the applicable international law. We shall therefore determine the effect of such actions and the criminal responsibility that may grow out of it.
The evidence shows that General Bader reserved unto himself the authority to issue orders for the arrest of hostages and the execution of all reprisal measures. It appears that the commanding general handled these matters with the aid of a special officer who had been trained in the law. It was the duty of this officer to examine the particular problem with regard to the correctness of the description of events and submit his conclusion to the military commander who made the decision.
The defendant von Geitner was necessarily informed of the order made by virtue of his position. It became his duty to prepare the order and approve its form which he usually did by placing his signature or initials on it. This he contends is the extent of his participation in the issuing and distributing of reprisal orders.
The applications for reprisal actions were generally made by (1) the Administrative Sub-Area Headquarters, (2) by troop commanders, or (3) the Higher SS and Police Leader. They were then referred to the special legal officer who worked on them and submitted the result to the commander. The commander then made the decision and delivered it to the defendant von Geitner for preparation and approval as to form. The latter was generally indicated by his initials or signature. The order then was sent on its way through regular channels by von Geitner. No doubt exists that the order was that of the military commander and that the defendant von Geitner lacked the authority to issue such an order on his own initiative. He contends that he was opposed to the reprisal policy carried out in this area, a statement sustained by the record. He does not say that reprisal killings against the population were not necessary or that he considered it unlawful to carry out such measures under certain conditions. The question posed is whether the stated participation of the defendant von Geitner in his capacity as Chief of Staff is sufficient to establish criminal liability.
The evidence fails to show beyond a reasonable doubt that he aided, abetted or took a consenting part in acts which were crimes under international law. No responsible act is shown to have been committed by him from which a guilty intent can be inferred. The charge that a conspiracy existed which had for its purpose the decimation and annihilation of racial and religious groups is not established by sufficient evidence insofar as this defendant is concerned. The record does not show his participation in slave labor programs or concentration camp activities although he knew of them. His testimony that he opposed all such measures is not effectively disputed.
These things, coupled with the nature and responsibilities of his position and the want of authority on his part to prevent the execution of the unlawful acts charged, serve to relieve him of criminal responsibility. We find the defendant von Geitner not guilty.
Judge Wennerstrum will continue with the reading of the opinion from this point.
JUDGE WENNERSTRUM (Reading):
The defendant Rendulic became Commander-in-Chief of the Second Panzer Army on 26 August 1943 and remained in the position until June 1944. In July 1944, he became the Commander-in-Chief of the Twentieth Mountain Army, a position which he held until January 1945. In december 1944, he became the Armed Forces Commander North in addition to that of Commander-in-Chief of the Twentieth Mountain Army. In January 1945; he became Commander-in-Chief of Army Group North, a position which he held until March, 1945. These are the assignments during which the crimes set forth in the indictment are alleged to have occurred. At the time he assumed command of the Second Panzer Army, the LXIX Corps, the XV Corps, the V SS Corps and two Croatian Corps constituted the greater portion of the Second Panzer Army. The headquarters of the army was in Croatia and its principal task was the guarding of the coast against enemy attacks and the suppression of band warfare in the occupied area. The Italians also had several army corps stationed in the immediate territory. The danger of the collapse of the Italian government and the possibility that the Italians might thereafter fight on the side of the Allies was a constant threat at the time of his assumption of the command of the Second Panzer Army.
The Hitler order of 15 September 1941, providing for the killing of 100 reprisal prisoners for each German soldier shot and 50 for each German soldier wounded, had been distributed to the troops in the Southeast and, in many instances, carried out before the defendant Rendulic assumed command of the Second Panzer Army.
The order was invalid and one who executed an order to kill reprisal prisoners under all circumstances at the ratio therein set forth performed a criminal act. The reasons for this have hereinbefore been set out in this opinion. It is claimed, however, that the order was never carried out by troops of the Second Panzer Army and that consequently no duty arose on the part of this defendant to take measures to prevent the enforcement of the order. It appears, however, that on 18 August, 1943, Keitel issued an order containing the following: "Commanders having the rank of at least that of divisional commander are empowered in cases of particularly malicious procedure on the part of bandits or their accomplices to issue precautionary directives not to take any prisoners or, respectively, that prisoners and the population captured in the combat area may be shot. Without adequate orders, local commanders will act according to their own responsibility". On 15 September 1943, this defendant issued an order which in part stated: "Attacks on German members of the Wehrmacht and damages to war-important installations are to be answered in every case by the shooting or hanging of hostages and the destruction of surrounding villages, which later is to take place - if possible - after the arrest of the male population which is capable of bearing arms. Only then will the population inform the German authorities if bandits collect so as to avoid reprisal measures.
"Unless in individual cases different orders are issued the rule for reprisal measures is: 1 German killed 50 hostages 1 German wounded 25 hostages shot or hanged. Kidnapping of a German will be considered equal to killing a German unless the kidnapped person does not return within a definite period. According to the severity of the attack a hundred hostages will be hanged or shot for each attack against war essential installations. These reprisal measures are to be executed if the culprit is not caught within 40 hours."
The reports of corps commanders subordinate to the defendant reveal that reprisals were taken against the population for attacks upon troops and military installations. On 11 November 1943, the 173rd Reserve Division reported the hanging of 20 hostages and the shooting of 20 hostages for railroad sabotage. On 21 September 1943, 10 hostages were hanged by the 187th Reserve Division for an attack on a truck. On 4 October 1943, the 173rd Reserve Division reports the execution of 40 hostages in reprisal for railroad sabotage. On 10 October 1943, the 187th Reserve Division reported the killing of 20 people suspected of belonging to the bands. On 31 October 1943, the 187th Reserve Division reports the killing of 9 people suspected of being bandits. On 7 November 1943, the 173rd Reserve Division hanged 19 Communists at scene of an explosion on a railroad in reprisal. On 8 November 1943, the 173rd Reserve Division shot 21 hostages as reprisal for an attack on a freight train. On 30 November 1943, the 187th Reserve Division reports killing 15 people suspected of belonging to bands in reprisal, the offense for which the reprisal was taken not being stated. The foregoing constitute a partial list of reprisal and hostage killings as shown by the reports of the LXIX Reserve Corps, commanded by the defendant Dehner, and to whom the 173rd and 187th Reserve Divisions were subordinate. These reports were made to the Second Panzer Army, commanded by the defendant Rendulic and to whom the LXIX Reserve Corps was subordinate.
They carried little or no information in addition to that which we have stated. The defendant made no attempt to secure additional details. All attempts to apprehend the guilty persons were abandoned. Public proclamations upon the taking of hostages were not made. Previous notice was not given the public that reprisals by shooting would be taken if unlawful acts were repeated. Court martial proceedings were not held as required. Hostages, reprisal prisoners and partisans were killed without even the semblance of a judicial hearing.
On occasion interrogations were held but these were primarily to gain information rather than an attempt to give the persons interrogated a fair and impartial hearing. It is evident that the taking of reprisal measures by shooting members of the population became so common that the German commanders became indifferent to the seriousness of the acts. They appear to have been accepted as legitimate acts of war with the extent of their use limited only by the whim or judgment of divisional commanders. The records further indicate that arrested persons whose guilt could not be established were generally held as reprisal prisoners. This resulted, of course, in the death of the arrestee in any event. There was no requirement that hostages or reprisal prisoners killed should be connected with the offense committed, either passively, or actively, or by proximity. The practice employed in the killing of hostages and reprisal prisoners was not one of last resort. The general notion seems to have been expressed by General Alexander Loehr in an order bearing the date 22 December 1943 while acting as Commander-in-Chief Southeast for Fieldmarshal von Weichs, wherein he said:
"The reprisal, penal, and retaliation measures practiced up to now must in the future take into account the new political objectives. The first principle has to be, in cases of attacks, acts of sabotage, etc., to seize the perpetrator himself and to take reprisal measures only as a second course, if through reprisal measures the prevention of future attacks is to be expected."
The order of 15 September 1943, signed and issued by the defendant Rendulic indicates his advocacy of these excessive and irregular hostage and reprisal measures. It is true, as he contends, that they were consistent with and directed by his superiors. It is also true that the record does not indicate that he ever issued an order directing the killing of a specific number of hostages or reprisal prisoners as retaliation for any particular offense. The issuance of such orders was delegated to divisional commanders. Their activities were known to him through reports. He acquiesced in them and took no steps to shape the hostage and reprisal practices in conformity with the usages and practices of war. While mitigating circumstances exist which must receive the careful consideration of the Tribunal, the defendant must be held guilty of ordering, furthering and acquiescing in the unlawful killing of innocent inhabitants of occupied territory.
The evidence further shows that on 3 September 1943, Italy surrendered unconditionally to the Allies. The surrender was announced publicly on 8 September 1943. The defendant testifies that this event was anticipated by him as well as the possibility that Italy would become an enemy of the Germans. His testimony is to the effect that the German army in performing its task of guarding the coast to prevent an Allied landing, could not tolerate the presence of hostile Italians in these coastal areas. Holding these definite views of the necessities of the situation, the defendant set about removing the Italians from the coastal areas by making them prisoners of war.
It appears that the Italian troops stationed in Greece, Yugoslavia and Albania were subordinated to Army Group Este, commanded by General of the Army Rossi. The Italian troops within the area occupied by the Second Panzer Army, with the exception of one army corps, were subordinated to the Italian IXth Army under the command of General D'Almazzo. The defendant, knowing General Rossi to be hostile to the desires of the German command, caused him to be taken into custody. General D'Almazzo was thereupon taken to Belgrade by the Germans and "assigned" to the command of Army Group Este in the place of General Rossi. It was with the latter general that the defendant negotiated for the surrender of the Italian troops within the area of the Second Panzer Army. Even though outnumbering the Germans at least twenty to one and without orders to so do, General D'Almazzo entered into an agreement with the defendant for the surrender of the IXth Italian Army. The defendant whereupon caused Italian commanders to be notified that they would be shot as franc-tireurs if they continued to resist and failed to order their troops to surrender to the Germans. In case of destruction or looting of arms, ammunition, fuel and supply depots, it was ordered by defendant that one staff officer and fifty men from each division concerned, would be shot. Death was threatened to all Italian soldiers who failed to turn in their guns, for selling or giving away or destroying their arms, and many similar acts too numerous to mention here. The defendant Rendulic states that no Italians were shot pursuant to these sanctions.
On 11 and 13 September 1943 and subsequent to the issuance of the preceding sanctions, the defendant received Fuehrer Orders directing that the officers of all Italian units who had cooperated with insurgents or permitted their arms to fall into the hands of insurgents, were to be shot and that the officers of resisting units who continued their resistance after receipt of a short ultimatum, were also to be shot. The record discloses that the defendant Rendulic was insistent that his corps commanders carry out these orders "without any scruples."
In this connection it is shown that troops subordinated to the XV Mountain Army Corps captured 300 Italian officers and 9000 men who resisted capture at Split. On 6 October 1943, it was reported to the Second Panzer Army by the XV Mountain Army Corps that 3 generals and 45 officers had been sentenced to death by a general court martial and executed. The report further states that 9 additional Italian officers had been found guilty of treason and shot. Under date of 9 October 1943, the XXI Mountain Army Corps reported to the Second Panzer Army that reprisal measures were carried out against 18 Italian officers.
It is the contention of the defendant Rendulic that the surrender of the IXth Italian Army, commanded by General D'Almazzo, brought about ipso facto the surrender of the Bergamo Division in Split and that elements of this division by continuing to resist the German troops became franc-tireurs and thereby subject to the death penalty upon capture. An analysis of the situation is required for clarification.
The evidence shows that the Italian IXth Army was occupying the coastal area jointly with the German Armed Forces as an ally until the collapse of Italy. That danger existed in the possibility of the area becoming an enemy bridgehead cannot be denied. Even though the German troops were outnumbered as much as 20 to 1, the defendant Rendulic saw the necessity of controlling the area. By cleverly maneuvering his numerically inferior troops and taking advantage of the uncertainties of the situation in which the Italian commanders found themselves, the defendant Rendulic was able to coerce a surrender of the IXth Italian Army by its Commander, General D'Almazzo. Most of the troops of the IXth Army complied with the terms of the surrender. Among those which refused to comply was the Bergamo Division of the IXth Army stationed at Split, a seaport on the Adriatic Sea.
The defendant was able to marshall forces sufficient to capture the troops of the Bergamo Division. Thereafter, the order to shoot the guilty officers of the Bergamo Division after summary court martial proceedings was carried out.
It must be observed that Italy was not at war with Germany, at least insofar as the Italian commanders were informed, and that the Germans were the aggressors in seeking the disarmament and surrender of the Italian forces. The Italian forces which continued to resist met all the requirements of the Hague Regulations as to belligerent status. They were not franc-tireurs in any sense of the word. Assuming the correctness of the position taken by the defendant that they became prisoners of war of the Germans upon the signing of the surrender terms, then the terms of the Geneva Convention of 1929, regulating the treatment of prisoners of war were violated. No representative neutral power was notified nor was a three months period allowed to elapse before the execution of the death sentences. Other provisions of the Geneva Convention were also violated. The coercion employed in securing the surrender, the unsettled status of the Italians after their unconditional surrender to the Allied forces and the lack of a declaration of war by Germany upon Italy creates grave doubts whether the members of the Bergamo Division became prisoners of war by virtue of the surrender negotiated by General D'Almazzo. Adopting either view advanced by the defense, the execution of the Italian officers of the Bergamo Division was unlawful and wholly unjustified. It represents another instance of the German practice of killing as the exclusive remedy or redress for alleged wrongs. The execution of these Italian officers after the tense military situation had righted itself and the danger had passed cannot be described as anything but an act of vengeance.
The defendant is charged also with passing on to troops subordinate to him the Fuehrer Order of 6 June 1941, providing that all Commissars captured must be shot.
Defendant admits the receiving and passing on of this order in July 1941 when he was in command of the 52nd Infantry Division on the Russian front. He admits that the legality and correctness of this order was discussed and that it was generally considered illegal. He testifies that he considered the order as a reprisal measure, the purpose of which was unknown to him. But a mere assertion of this nature, unaccompanied by evidence which might justify such an assumption, is not a defense. Such an assertion could be made as an excuse for the issuance of any unlawful order or the committing of any war crime, if it were available as a defense ipso facto. We do not question that circumstances might arise in such a case that would require a court to find that no criminal intent existed but it must be based upon something more than a bare assertion of the defendant, unsupported by facts and circumstances upon which a reasonable person might act. The order was clearly unlawful and so recognized by the defendant. He contends, however, that no captured Commissars were shot by troops under his command. This is, of course, a mitigating circumstance but it does not free him of the crime of knowingly and intentionally passing on a criminal order.
Defendant is also charged with issuing, distributing and carrying into execution the Commando Order of 18 October 1942. The record discloses, however, that this order had been issued and distributed prior to his assignment in the Balkans. The Hitler Order of 30 July 1944, making the Commando Order applicable to members of foreign military missions, was not in existence during his assignment in the Balkans. It is evident that defendant Rendulic did not issue or pass on the Commando Order while Commander-in-Chief of the Second Panzer Army.
Proof of any acts connecting him with this criminal order has not been produced. We hold, therefore, that the evidence is insufficient to sustain a finding of guilt as to this charge.
The defendant is charged with the wanton destruction of private and public property in the province of Finnmark, Norway, during the retreat of the XXth Mountain Army commanded by him. The defendant contends that military necessity required that he do as he did in view of the military situation as it then appeared to him.
The evidence shows that in the spring of 1944, Finland had attempted to negotiate a peace treaty with Russia without success. This furnished a warning to Germany that Finland might at any time remove itself as an ally of the Germans. In June 1944, the Russians commenced an offensive on the southern Finnish frontier that produced a number of successes and depressed Finnish morale. On 24 June 1944, the defendant Rendulic was appointed commander-in-chief of the XX Mountain Army in Lapland. This army was committed from the Arctic Ocean south to the middle of Finland along its eastern frontier. Two army corps were stationed in central Finland and one on the coast of the Arctic Ocean. The two groups were separated by 400 kilometers of terrain that was impassable for all practicable purposes.
On 3 September 1944, Finland negotiated a separate peace with Russia and demanded that the German troops withdrew from Finland within 14 days, a demand with which it was impossible to comply. The result was that the two army corps to the south were obliged to fight their way out of Finland. This took three months time. The distance to the Norwegian border required about 1000 kilometers of travel over very poor roads at a very inopportune time of year. The Russians attacked almost immediately and caused the Germans much trouble in extricating these troops. The XIXth Corps located on the Arctic coast was also attacked in its position about 150 kilometers east of Kirkones, Norway. The retreat into Norway was successful in that all three army corps with their transport and equipment arrived there as planned.