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.
The difficulties were increased in middle October when the four best mountain divisions were recalled to Germany, thereby reducing the strength of the army by approximately one-half.
The evidence shows that the Russians had very excellent troops in pursuit of the Germans. Two or three land routes were open to them as well as landings by sea behind the German lines. The defendant knew that ships were available to the Russians to make these landings and that the land routes were available to them. The information obtained concerning the intentions of the Russians was limited. The extreme cold and the short days made air reconnaissance almost impossible. It was with this situation confronting him that he carried out the "scorched earth" policy in the Norwegian province of Finmark which provided the basis for this charge of the indictment.
The record shows that the Germans removed the population from Finnmark, at least all except those who evaded the measures taken for their evacuation. The evidence does not indicate any loss of life directly due to the evacuation. Villages were destroyed. Isolated habitations met a similar fate. Bridges and highways were blasted. Communication lines were destroyed. Port installations were wrecked. A complete destruction of all housing, communication and transport facilities was had. This was not only true along the coast and highways, but in the interior sections as well. The destruction was as complete as an efficient army could do it. Three years after the completion of the operation, the extent of the devastation was discernable to the eye. While the Russians did not follow up the retreat to the extent anticipated, there are physical evidences that they were expected to do so. Gun emplacements, fox-holes, and other defense installations are still perceptible in the territory. In other words there are mute evidences that an attack was anticipated.
There is evidence in the record that there was no military necessity for this destruction and devastation. An examination of the facts in retrospect can well sustain this conclusion. But we are obliged to judge the situation as it appeared to the defendant at the time.
If the facts were such as would justify the action by the exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be criminal. After giving careful consideration to all the evidence on the subject, we are convinced that the defendant cannot be hold criminally responsible although when viewed in retrospect, the danger did not actually exist.
The Hague Regulations prohibited "The destruction or seizure of enemy property except in cases where this destruction or seizure is urgently required by the necessities of war." Article 23 (g). The Hague Regulations are mandatory provisions of international law. The prohibitions therein contained control and are superior to military necessities of the most urgent nature except where the Regulations themselves specifically provide the contrary. The destructions of public and private property by retreating military forces which would give aid and comfort to the enemy, may constitute a situation coming within the exceptions contained in Article 23(g). We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finnmark actually existed. We are concerned with the question whether the defendant at the time of its occurrence acted within the limits of honest judgment on the basis of the conditions prevailing at the time. The course of a military operation by the enemy is loaded with uncertainties, such as the numerical strength of the enemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and the uncertainty of his intentions. These things when considered with his own military situation provided the facts or want thereof which furnished the basis for the defendant's decision to carry out the "scorched earth" policy in Finnmark as a precautionary measure against an attack by superior forces. It is our considered opinion that the conditions, as they appeared to the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made.
This being true, the defendant may have erred in the exercise of his judgment but he was guilty of no criminal act. We find the defendant not guilty on this portion of the charge.
The evidence establishes the guilt of the defendant Rendulic on Counts One, Three and Four.
The defendant Dehner was assigned as the commander of the LXIXth Reserve Corps in the last days of August 1943. He held this command until 15 March 1944. The corps was stationed in northern Croatia and occupied about one-third of that country. The corps consisted of the 187th Reserve Division, the 173rd Reserve Division and other units which were subordinate to it for varying periods of time. The chief task of this corps was to suppress the guerrilla bands operating in the territory and particularly to guard the Zagreb-Belgrade railroad and the communication lines in the assigned area. There was no coastline to guard in the area of this corps.
The defendant is charged primarily with the unlawful killing of hostages and reprisal prisoners, and with the wanton destruction of towns and villages contrary to international law. With reference to the alleged unlawful killing of hostages and reprisal prisoners, we point out that all the incidents set forth in the portion of the opinion dealing with the defendant Rendulic were committed by troops of the 173rd and 187th Reserve Divisions both of which were directly subordinated to this defendant. No necessity exists to reiterate these incidents here. They will be incorporated as a part of the case against the defendant Dehner by reference. Numerous occurrences took place in addition to the foregoing.
In the daily report of the LXIX Reserve Corps to the Second Panzer Army for 5 November 1943, it is shown that the 173rd Reserve Division hanged 100 bandits for an attack on railroad installations and on certain police forces.
This action appears from the language used to have been a retaliation measure and not a shooting of franc-tireurs. That it was excessive as such is self evident. In a similar report dated 7 November 1943, it shows that the 173rd Reserve Division hanged 19 communists at the scene of a railroad explosion in reprisal for the act. On 8 November 1943, this same division shot 21 hostages as a reprisal for railroad sabotage. A similar report shows that the 187th Reserve Division on 21 December 1943, shot 25 people "suspected of being bandits" and hostages as a reprisal for band attacks.
The reports made are hopelessly inadequate. The defendant appears to have made no effort to require reports showing that hostages and reprisal prisoners were shot in accordance with international law. Killings by shooting and hanging took place for railroad sabotage out of all proportion to the nature of the offense. Retaliation was taken against special groups such as communists and bandit suspects. The population does not appear to have been warned of the intention to kill hostages and innocent members of the population in the event of the recurrence of offenses against the occupying power. The reprisals appear to have been taken without regard to any possible connection of the population with the offense committed. Hostages were shot and reprisal prisoners killed when it was well known that the offenses for which retaliations were ordered, were committed by organized bands having no connection whatever with the immediate population. Innocent members of the population were shot in reprisal for German losses sustained in combat after the Fuehrer order of 18 August 1943 authorizing the treatment of band members as prisoners of war. No more glaring injustice can be pointed to, it being a case where the guilty escape and the innocent are put to death. Court martial proceedings do not appear to have been held. The defendant excuses his indifference to all these killings by saying that it was the responsibility of the division commanders. We agree that the divisional commanders are responsible for ordering the commission of criminal acts. But the superior commander is also responsible if he orders, permits or acquiesces in such criminal conduct.
His duty and obligation is to prevent such acts, or if they have been already executed, to take steps to prevent their recurrence.
The records show that this defendant had full knowledge of these acts. On 24 December 1943, his corps headquarters called attention to the fact that the order of the Commander-in-Chief of the Second Panzer Army of 15 September 1943 was in force. This order was described in the portion of the opinion dealing with the defendant Rendulic and will not be reiterated here. It appears to us from an examination of the evidence that the practice of killing hostages and reprisal prisoners got completely out of hand, - legality was ignored and arbitrary action became the accepted policy. The defendant is criminally responsible for permitting or tolerating such conduct on the part of his subordinate commanders.
There is much that can be said, however, in mitigation of the punishment to be assessed from the standpoint of the defendant. Superior orders existed which directed the policy to be pursued in dealing with the killing of hostages and reprisal prisoners. Such superior orders were known by his subordinate commanders, a situation that made it difficult for him to act. That the defendant recognized certain injustices and irregularities and attempted to correct them is evident from the record. As an example in an order of 19 December 1943, his corps headquarters stated: "Measures of the unit have repeatedly frustrated propaganda for the enemy as planned by the unit leadership. It must not happen that bandits who arrive at the unit with leaflets asking them to desert and which should be valid as passes, are shot out of hand. This makes any propaganda effort in this direction nonsensical. Even our own confidential agents bringing important news from band territory and notwithstanding their repeated assurances that they are in the service of the German Wehrmacht have been shot down 'to simplify matters, i.e. without any investigation." The order goes on to say that under such circumstances it is not surprising that notwithstanding the discomforts of living in the woods in winter that the band nuisance increases steadily and that the fight increases in severity and stubbornness. The same order further states: "It must be absolutely avoided that innocent people are kept in hostage camps and that they possibly atone with their lives for an affair with which they had no connection. With the exception of case Ia Hostages are to be made responsible for the misdeeds of bands only in the neighborhood nearest to their own villages. It is not permitted, for instance, that hostages from Karlovci be used for retaliation measures in case a surprise attack by bands or a demolition occurs near Ruma." The order further says: "It is impossible to make use of hostages for the execution of reprisal measures for the German soldiers killed in the fight against bands. If would be contradictory on the one hand to treat active members of bands, captured during battle, as prisoners of war (Fuehrer order dated 8 August 1943), that is to let them live; and on the other hand, to hang hostages from the next hostage camp for our own losses in the fight against bands."
The foregoing approaches closely the correct course to be pursued insofar as it bears upon the subject of hostages and reprisals. It indicates an attempt to correctly apply the rules of warfare as they apply to guerrilla warfare in occupied territory. Such examples of conscientious efforts to comply with correct procedure warrant mitigation of the punishment.
The defendant is charged, also, with responsibility for the destruction of numerous towns and villages by troops subordinate to him without military necessity existing for their so doing. The record establishes that on 16 October 1943, the 187th Reserve Division arrested the majority of the populations of the villages of Paklonica and Vocarica as hostages and then burned down the villages. The record further shows that on 24 September 1943, the 173rd Reserve Division burned down the villages of Grgeteg and Bukavac. It shows also that on 26 November 1943 the village of Grgurevci was burned down by troops of the 173rd Reserve Division in reprisal for an attack on police from the village. Other cases of a similar character are shown by the record. Under some circumstances, the destruction of villages is a legitimate reprisal measure. The reports of these incidents are very fragmentary and give little or no details surrounding the actions. They do indicate that the acts were taken as reprisal measures and not from military necessity as that term is ordinarily used. We are obliged to say that the evidence is not sufficient to sustain a finding that these destructions were in violation of the laws of war.
We find the defendant guilty under Count One of the indictment.
The defendant von Leyser was appointed to command tho XXIst Mountain Corps on 1 August 1944 and continued in the position until April 1945. Immediately previous there too he had been in command of the XVth Mountain Corps, a position he had held since 1 November 1943.
Other assignments involved in the present case are in regard to his command of the 269th Infantry Division in Russia in 1941 and his command of the XXVIth Corps in Russia in 1942.
The XXIst Corps was committed in Albania and assigned the task of guarding the coast against allied invasion and the suppression of the resistance movement. Directly subordinate to him as commander of the XXIst Corps were the 297th Infantry Division, the 100th Rifle Division and other units assigned for particular operations. The XVth Corps was committed in Croatia and was likewise assigned the task of guarding the coast and suppressing band activities. Directly subordinate to the corps were the 114th Rifle Division which was subsequently replaced with the 264th Infantry Division, the 373rd Infantry Division and the 392nd Infantry Division. Other units appear to have been subordinated to the Corps for specific operations.
The defendant is charged with responsibility for the unlawful killing of hostages and reprisal prisoners, with ordering and carrying out the evacuation of the male population of Commissars pursuant to the Commissar Order of 6 June 1941.
The reprisal practice as carried out in this corps area and the alleged deportation of inhabitants for slave labor is so interwoven with the powers of the alleged independent state of Croatia that its status and relationship to the German Armed Forces must be examined Prior to the invasion of Yugoslavia by Germany on 6 April 1941, Croatia was a part of the sovereign state of Yugolsavia and recognized as such by the nations of the world. Immediately after the occupation and on 10 April 1941, Croatia was proclaimed an independent state and formally recognized as such by Germany on 15 April 1941. In setting up the Croatian government, the Germans, instead of employing the services of the Farmers' Party which was predominant in the country, established an administration with Dr. Ante Pavelitch at its head. Dr. Pavelitch was brought in from Italy along with others of his group and established as the governmental head of the state of Croatia even though his group represented only an estimated five percent of the population of the country.
This government, on 15 June 1941, joined the Three Power Pact and, on 25 November 1941, joined the Anti-Comitern Pact. On 2 July 1941, Croatia entered the war actively against the Soviet Union and on 14 December 1941, against the allies. The Military Attache became the German Plenipotentiary General in Croatia and was subordinated as such to the Chief of the High Command of the Armed Forces. The territorial boundaries of the new Croatia were arbitrarily established and included areas that were occupied by Serbians who were confirmed enemies of the Croats.
The Croatian government, thus established, proceeded to organize a national army, the troops of which are referred to in the record as Domobrans. Certain Ustasha units were also trained and used. The Ustasha in Croatia was a political party similar to the Nazi party of Germany. Similar to the Waffen SS Divisions of the general Ustasha were trained and used. In addition, by an alleged agreement between Germany and Croatia, the Croatian government conscripted men from its population for compulsory labor and military service. Many of these men were used in German organized Croat Divisions and became a part of the German Wehrmacht under the command of German officers.
It is further shown by the evidence that all matters of liaison were handled through the German Plenipotentiary General. It is evident that requests of the Germans were invariably acceded to by the Croatian government. It is quite evident that the answers to such requests were dictated by the German Plenipotentiary General. Whatever the form or the name given, the Croatian government during the German war-time occupation was a satellite under the control of the occupying power. It dissolved as quickly after the withdrawal of the Germans as it had arisen upon their occupation. Under such circumstances, the acts of the Croatian government were the acts of the occupation power. Logic and reason dictate that the occupant could not lawfully do indirectly that which it could not do directly.
The true facts must control irrespective of the form with which they may have been camouflaged. Even international law will cut through form to find the facts to which its rules will be applied. The conclusion reached is in accord with previous pronouncements of international law that an occupying power is not the sovereign power although it is entitled to perform some acts of sovereignty. The Croatian government could exist only at the sufferance of the occupant. During the occupation, the German Military government was supreme or its status as a military occupant of a belligerent enemy nation did not exist. Other than the rights of occupation conferred by international law, no lawful authority could be exercised by the Germans. Hence, they had no legal right to create an independent sovereign state during the progress of the war. They could set up such a provisional government as was necessary to accomplish the purposes of the occupation but further than that they could not legally go. We are of the view that Croatia was at all times here involved an occupied country and that all acts performed by it were those for which the occupying power was responsible. With the expression of these views, we pass to the consideration of the charges made against the defendant von Leyser.
THE PRESIDENT: The Tribunal will take its afternoon recess at this time for a period of fifteen minutes.
THE MARSHAL: The Tribunal will be in recess until 1515 hours.