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.
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: There is evidence in the record that innocent members of the population were killed in reprisal for attacks on troops and acts of sabotage committed by unknown persons by troops subordinate to the defendant von Leyser. That the defendant knew of many such killings, he admits. He denies that he ever issued an order to carry out any specific reprisal measure. He contends that this was the responsibility of divisional commanders in conjunction with Croatian government authorities. The record discloses, however, that on 10 August 1944, the defendant issued an order containing the following: "In case of repeated attacks in a certain road sector, communist hostages are to be taken from the villages of the immediate vicinity, who are to be sentenced in case of new attacks. A connection between these Communists and the bandits may be assumed to exist in every case." This order is, of course, not lawful. Reprisals taken against a certain race, class or group irrespective of the circumstances of each case, sounds more like vengeance than an attempt to deter further criminal acts by the population. An assumption of guilt on the part of a particular race, class or group of people in all cases also contravenes established rules. This is a matter which a judicial proceeding should determine from available evidence. We must assert again, in view of the defendant's statement that the responsibility for the taking of reprisal measures rested with the divisional commanders and the Croatian government, that a corps commander must be held responsible for the acts of his subordinate commanders in carrying out his orders and for acts which the corps commander knew or ought to have known about.
The evidence concerning the killing of hostages and reprisal prisoners within the corps area is so fragmentary that we cannot say that the evidence is sufficient to support a finding that the measures taken were unlawful. The killing of hostages and reprisal prisoners is entirely lawful under certain circumstances. The evidence does not satisfactorily show in what respect, if any, the law was violated.
This is a burden cast upon the prosecution which it has failed to sustain.
The more serious charge is that pertaining to the evacuation of large areas within the corps command for the purpose of conscripting the physically fit into the Croatian military units and of conscripting others for compulsory labor service.
On 8 March 1944, the XV Army Corps reported to the Second Panzer Army in part as follows: "Operation 'Bergwiese' terminated. Final report not yet available. Another 74 able bodied men taken into custody." On 9 March 1944, the same division reported 332 above bodied men in custody from the same operation. On 20 March 1944, the XV Army Corps reported in part as follows: "Operation 'Illusion' carried out after refusal by German Navy. No contact with enemy, 100 able bodied persons brought to Fiume." On 21 March 1944, the XV Army Corps reported as follows: "Intention: Harehunt code name 'Lagerleben' (Taking into custody of 200 compulsory recruits 6 kilometers east-southeast of Brinje)." This whole question can be disposed of by a consideration of the operation "Panther".
Shortly after taking command of the XV Corps, the defendant formulated a plan for the evacuation of the male population between the ages of 15 and 55 from the area between Una and Korana. This territory was supposed to contain about 7,000 to 8,000 men who were partly equipped with arms procured from the Italians. The area had been under the temporary control of the bands to such an extent that the Croat government had complained of its inability to conscript men for military service from the area. It was planned to crush the bands and evacuate the men and turn them over to the Croatian government for use as soldiers and compulsory labor. The operation was designated as Operation "Panther" and is so carried in the German Army reports. On 6 December 1943, the Second Panzer Army approved Operation "Panther". The order of approval provided that the estimated 6,000 persons fit for military service should be held in camps at Susak and Karlovac. The The evacuation of persons fit for military service was to be known by the code name "Silberstreifen" (silver stripes). On 2 December 1943, the Second Panzer Army ordered the operation to commence on 6 December 1943.
The last sentence of the order states: "Sending the evacuated population fit for military service to Germany for labor service is considered expedient."
The operation was carried out but only 96 men fit for military service were captured. It is evident that the inhabitants had been warned before the operation was commenced and had left to escape capture. The defendant attempts to justify his action by asserting that the primary purpose of the Operation "Panther" was the suppression of the bands, that the operation was purely a tactical one so far as he was concerned and that the disposition of the captured population fit for military service was for the decision of the Croatian government and not his concern.
We point out that the Croatian government was a satellite government and whatever was done by them was done for the Germans. The captured men fit for military service were turned over to the Croat administration and were undoubtedly conscripted into the Domobrans, the Waffen Ustasha, the Croat units of the Wehrmacht or shipped to Germany for compulsory labor just as the defendant well knew that they would be. The occupation forces have no authority to conscript military forces from the inhabitants of occupied territory. They cannot do it directly, nor can they do it indirectly. When the defendant as commanding general of the corps area participated in such an activity, he did so in violation of international law. The result is identical if these captured inhabitants, were sent to Germany for compulsory labor service. Such action is also plainly prohibited by international law as the evidence shows. See Articles 6, 23, 46, Hague Regulations. We find the defendant von Leyser guilty on this charge.
The defendant is also charged with issuing the Commissar order of 6 June 1941 and causing the same to be carried out while he was in command of the 269th Infantry Division in Russia in 1941.
The record shows a report of the 269th Infantry Division under date of 28 September 1941 wherein it is stated: "Special occurrences: 1 female Commissar shot. One woman who was in contact with Partisans, likewise shot". Under date of 20 November 1941, this same division reports as follows: "2 Russian prisoners of the 1st Battery were shot upon the order of the battalion commander. These were 1 Commissar and 1 Russian high-ranking officer." On 9 July 1941, the 269th Infantry Division reported to the XXXXI Army Corps to which it was subordinated as follows: "34 Politruks (Commissars) liquidated."
This evidence clearly shows that the 269th Infantry Division, commanded by the defendant von Leyser killed Commissars pursuant to the Commissar Order. This was a criminal order and all killings committed pursuant to it were likewise criminal. We find the defendant guilty on this charge.
We find the defendant von leyser guilty on Counts Three and Four.
The defendant Felmy had two assignments in Greece. He was appointed Commander Southern Greece about the middle of June 1941 and continued in the position until August 1942. During this period he had only 3 battalions of security and police troops subordinate to him. On 10 May 1943 the defendant became commander of the LXVIII Corps and continued in that position until the corps withdrew from Greece, an operation which was completed on 22 October 1944. In addition thereto on 9 September 1943, he assumed command of Army Group Southern Greece. He had subordinate to him the 1st Panzer Division, 117th Rifle Division and a number of fortress battalions. Until the collapse of Italy, two Italian divisions were subordinate to him.
This defendant is charged with responsibility for the unlawful killing of innocent members of the population and the wanton destruction of villages and towns without military necessity existing therefore.
The defendant admits ordering reprisal measures but denies that they were unlawful.
A brief review of some of these acts for which the defendant is responsible is therefore necessary. To begin with the defendant admits receiving the basic order of 16 September 1941 relative to reprisal measures up to 100 to 1 which has been often referred to in this opinion. He also received the Keitel Order of 28 September 1941 relative to the taking of hostages from all sections of the population which has likewise been quoted herein. He also received and passed on the order of General Loehr, Commander-in-Chief Southeast, dated 10 August 1943, which states in part: "In territories infested by the bandits, in which surprise attacks have been carried out, the arrest of hostages from all strata of the population remains a successful means of intimidation. Furthermore, it may be necessary, to seize the entire male population, insofar as it does not have to be shot or hung on account of participation in or support of the bandits, and insofar as it is incapable of work, and bring it to the prisoner collecting points for further transport into the Reich. Surprise attacks on German soldiers, damage to German property must be retaliated in every case with shooting or hanging of hostages, destruction of the surrounding localities, etc. Only then will the population announce to the German offices the collections of the bandits, in order to remain protected from reprisal measures." Defendant also received and passed on the order regarding reprisal measures issued by General Loehr, deputizing for Field Marshal von Weichs as Commander-in-Chief Southeast, under date of 22 December 1943, an order which has been previously quoted in this opinion. It says in part: "Reprisal quotas are not fixed. The orders previously decreed concerning them are to be rescinded. The extent of the reprisal measures is to be established in advance in each individual case. * * * The procedure, of carrying out reprisal measures after a surprise attack or an act of sabotage at random on persons and dwellings, in the vicinity, close to the scene of the deed, shakes the confidence in the justice of the occupying power and also drives the loyal part of the population into the woods.
This form of execution of reprisal measures is accordingly forbidden. If, however, the investigation on the spot reveals concealed collaboration or a conscientiously passive attitude of certain persons concerning the perpetrators, then these persons above all are to be shot as bandit helpers and their dwellings destroyed * * * Such persons are co-responsible first of all who recognize Communism."
The records show the following actions by troops subordinate to this defendant: On 9 September 1943, during mopping up operations of Levadeia "as reprisal measures for 1 murdered German soldier 10 Greeks hanged." On 7 November 1943, the LXVIII Corps reports "18 Communists were shot in Tripolis as reprisal for railroad sabotage committed lately." On 29 November 1943, the LXVIII Corps reports: "As reprisal for band attack on Tripolis - Sparta road 100 hostages shot at the place of attack." On 5 December 1943, the LXVIII Corps reported "50 hostages were shot in Aighion for attacks committed lately" and on 6 December 1943, "for attack on railroad strong hold East of Tripolis 50 hostages were hanged." On 6 December 1943, operation "Kalavrita" was commenced. In reprisal for the killing of 78 German soldiers, the 117th Division under the command of General von Le Suire carried out this attack. More than 25 villages were destroyed and 696 Greeks are admitted to have been shot in reprisal. There is evidence of an eyewitness that approximately 1300 Greeks were killed in reprisal. The defendant admits that this reprisal measure was excessive and says that he orally reprimanded General von La Suire for the severity or this reprisal measure. No reprimand or complaint as to Le Suire's conduct appears in the documentary evidence before the tribunal.
The diary of the LXVIII Corps reports the following reprisal measures: On 17 January 1944, "In retaliation for an attack on one officer in the Rhizaes area 20 communists executed." On 22 April 1944, "In Tripolis 12 well-known communists were shot as a retaliation measure for the murder of a rural police officer." On 23 February 1944, "Shooting of 200 hostages from the Tripolis hostage camp at the place of attack." This reprisal was for two truck convoy attacks resulting in 33 German dead and 9 wounded. On 11 March 1944, for an attack on an armed German convoy, General Le Suire asked and was granted permission by this defendant to shoot "200 hostages (communists) to be taken out of all hostage camps." Defendant contends that only 141 hostages were actually shot.
The extent of the reprisals taken in the area of the LXVIII Corps is shown by the testimony of the defendant who says that between July and December, 1943, 91 acts of sabotage occurred and 60 reprisals taken, and from January to June 1944, there was a monthly average of 55 acts of sabotage and engagements with bands.
It hardly seems necessary for us to point out that many of these reprisal killings were excessive and many were unlawful because there was no connection between the inhabitants shot and the offense committed. Reprisals were taken against special groups, such as "communists" and "bandit suspects" without any relationship to the offense being established. The Kalavrita operation can only be described as plain murder and a wanton destruction of property. The assertion of the defendant that he orally reprimanded General von Le Suire for the severity of this operation does not appear too convincing in view of the recommendations later made by defendant for the advancement of Le Suire to a higher command. Reprisal measures were carried out in the corps area without rhyme or reason. They became a part of the tactical campaign for the suppression of the bands in the first instance rather than as a last resort. It is plane that deterring the local population at the scene of the offense was not the primary objective. Reprisal prisoners were taken from hostage camps generally and at points distant from the place where the offenses occurred. It was more the case of an eye for an eye than an honest attempt to restrain the population by a use of hostage and reprisal measures as a last resort.
On 5 April 1944, the notorious "blood bath" at Klissura occurred. The facts are: On the date in question, an engagement between bands and German troops occurred about 2 1/2 kilometers outside the village of Klissura. After the retreat of the bands, the troops moved into the village and began searching for evidence of band support. None was found. Later in the afternoon, units of the 7th SS Panzer Grenadier Regiment entered the village and began almost immediately to kill the inhabitants.
At least 215 persons, and undoubtedly more, were killed. Among these killed were 9 children less than one year old, 6 between 1 and 2 years of age, 6 between 2 and 3 years, 11 between 3 and 4, and 4 between 4 and 5. There were 72 massacred who were less than 15 years of age and 7 people in excess of 80 years. No justification existed for this outrage. It was plain murder.
On 10 June 1944, troops of this same regiment carried out a reprisal measure against the inhabitants of the village of Distomon. It seems that bands were first engaged near Stiri, 5 kilometers southeast of Distomon. After the defeat of the bands, the troops returned to Distomon and shot approximately 300 of the population, including men, women and children. It also was plain, calculated murder.
A complaint was voiced by the Plenipotentiary of the Foreign Office and an investigation demanded. The defendant Felmy was charged with the duty of having the investigation made. He denies that this regiment was subordinate to him or that he had any disciplinary control over it. For the purpose of this discussion, we will accept his statement as true even though the order to investigate and report through Wehrmacht channels indicates the contrary. The point that is material here is that the investigation was made, the battle report of the commanding officer was found to be false and the action of the regimental commander found to be in excess of existing orders. Upon the discovery of these facts, the defendant Felmy recommended that disciplinary action (the method of trying minor offenses) be taken against the officer in charge in consideration of the sacrifices of the regiment in the combat area at the time. The defendant testified that he never knew what punishment, if any, was assessed against this guilty officer. He seems to have had no interest in bringing the guilty officer to justice. Two of the most vicious massacres of helpless men, women and children appear to have met with complete indifference on his part. The falsification of the battle report by the regimental commander seems to have been deemed the major offense.
War at its best is a dirty business but under no circumstances can coldblooded, mass murder such as these two cases establish, be considered as related remotely even to the exigencies of war. The defendant's attitude toward the innocent population is reflected in his indifference to these unjustified and brutal murders which took place within the area of his command. It is a matter that goes to the question of the defendant's character, intent and purpose in carrying out the acts for which he is charged. The responsibility of the defendant for the killing of innocent members of the population by the exercise of unlawful hostage and reprisal practices is clearly established. We find the defendant Felmy guilty on Counts One and Two.
The defendant Lanz was appointed to command the XXII Mountain Corps on 25 August 1943 and actually assumed the position on 9 September 1943. The corps command was generally speaking the Epirus area of Greece. This consisted of the area between the Gulf of Corinth and Albania lying west of the Pindus Mountains. The Corps headquarters were in Joannina. The defendant is charged with the responsibility for killing hostages and reprisal prisoners in violation of international law and with the unlawful killing of Italian officers after the Italian capitulation.
A brief summarization of the evidence against the defendant is required. On 13 September 1943, General Stetner, Commander of the 1st Mountain Division, a unit subordinate to the defendant and whose headquarters was at the time also in Joannina, issued an order in part as follows: "In order to oppose energetically the continued raids on convoys and members of the Wehrmacht, it is ordered, that from 20 September (1943) onward, for every German soldier wounded or killed by insurgents or civilians, 10 Greeks from all classes of the population to be shot to death. This order must be carried out consistently in order to achieve a deterrent effect." On 29 September 1943, the XXII Corps reported: "Telephone sabotage in the area of Arta. Poles sawed off at two places.