30 male civilian suspects arrested and shot." On 3 October 1943, the defendant issued an order reading in part as follows: "On account of the repeated cable sabotage in the area of Arta: 30 distinguished citizens (Greeks) from Arta, 10 distinguished citizens (Greeks) from Filipias, are to be arrested and kept as hostages. The population is to be notified that for every further cable sabotage 10 of these 40 hostages will be shot to death." The defendant denies that any of these hostages were shot and there is no evidence in the record to the contrary. On 4 October 1943, the 1st Mountain Division reported to the XXII Corps as follows: "Mopping up operations Eisl continue beyond Alomotros. Villages destroyed as reprisal measure. All civilians shot to death." On 18 October 1943, the 1st Mountain Division reported to the XXII Corps as follows: "Shot to death: Paramythia: Reprisal measure for 6 murdered German soldiers 58. Thereakision: Reprisal measure for murder of Lt. Col. Salminger 14.
Arta, Klisura: Suspicious elements near the localities where attacks had occurred (about) 30. Jannina City: 4." On 25 October 1943, the 1st Mountain Division issued a special directive to its subordinate units which stated in part: "If a member of the German Wehrmacht is killed by either attack or murder in a territory considered pacified, 50 Greeks (male) are to be shot for 1 murdered German. * * * The decision regarding executions for losses in band combat is made by the competent troop commander. Here also the ratio is 1 to 50. The prerequisite for the order of execution is indubitable proof that the population of a village has participated in hostile action against the German Wehrmacht. In addition, the villages are to be destroyed." This order supersedes that of 13 September 1943. Numerous killings of hostages and reprisal prisoners, in addition to those enumerated, appear in the record. There are reports to the effect that "all the inhabitants" of named villages and "all men capable of bearing arms" were shot to death. Persons designated as "civilians" were shot on numerous occasions.
The orders for the taking of reprisal measures were clearly unlawful. An order to shoot 50 Greeks for each German killed regardless of circumstances meets the legal objections heretofore stated in this opinion. Instead of reprisals against innocent inhabitants being taken as a last resort, they were more often taken in the first instance. Reprisal killings were often carried out against the inmates of hostage camps and not against the population having some relationship with the crime committed. Attacks by armed bands having no connection with the local population were avenged by killing innocent inhabitants who had no possible association with the guilty. Many villages were destroyed and the civilian inhabitants shot without any logical reason at all except to wreak vengeance upon the population generally. According to the reports in evidence, court martial proceedings were not held. The killings were had on the order of the competent field commander, the evidence showing that battalion commanders sometimes gave such orders.
This defendant says that as a tactical commander he was too busy to give attention to the matter of reprisals. This is a very lame excuse. The unlawful killing of innocent people is a matter that demands prompt and efficient handling by the highest officer of any army. This defendant, with full knowledge of what was going on, did absolutely nothing about it. Nowhere does an order appear which has for its purpose the bringing of the hostage and reprisal practice within the rules of war. The defendant does not even contend that he did. As commander of the XXII Corps, it was his duty to act and when he failed to so do and permitted these inhumane and unlawful killings to continue, he is criminally responsible.
The defendant Lanz is also charged as commander of the XXII Mountain Corps with having ordered or permitted the unlawful execution of Italian officers and soldiers of the surrendered Italian army. He is also specifically charged with ordering troops under his command to execute the captured Italian General Gandin and all officers of his staff. The general situation regarding the collapse of Italy and the surrender of its armies has been set forth in the portion of the opinion dealing with the defendant Rendulic and it will not be repeated here except as necessity requires.
The record discloses that the defendant Lanz knew when he assumed command of the XXII Mountain Corps that Field Marshal Badoglio had succeeded Mussolini as head of the Italian government and Commander-in-Chief of the Italian Army. On 8 September 1943, he heard of the armistice which the Italians had signed with the allies. On the same day, due to the absence of senior officers from Athens, General. Alexander Loehr, Commander in Chief of Army Group E, commissioned the defendant Lanz to negotiate with General Vecchiarelli, the Commander-in-Chief of the XIth Italian Army. After much negotiating, General Vecchiarelli surrendered the XIth Army to the Germans on 9 September 1943. The surrender terms were carried out during the following 14 days, without difficulty insofar as troops stationed on the Greek mainland were concerned. On the islands of Corfu and Cepha lonia, however, difficulties arose.
These two islands were occupied by one Italian Division under the command of General Gandin. The defendant Lanz as commanding general of the XXII Corps, demanded that General Gandin surrender his troops and the demand was refused even though General Vecchiarelli had directed him to do so. General Gandin vacillated, contending that his orders were not clear and that he had no right to surrender the division. The situation resulted in fighting between the German and Italian troops on the island of Cephalonia and the eventual surrender of the Italian forces, including General Gandin and his staff, on 21 September 1943.
During this stage of the proceedings, a Fuehrer order arrived directing that the 6,000 or 7,000 italians of General Gandin's division were to be shot for mutiny. The defendant Lanw refused to carry out this order for the reason that it was neither feasible nor lawful to do so. The fuehrer order was then modified providing only that the officers were to be shot for mutiny. The defendant objected to the shooting of all officers and advocated that the order apply only to the guilty. The evidence indicates that the defendant Lanz ordered the German commandant of the islands to determine the guilty officers by court martial proceedings. This was done and on 24 September 1943, General Gandin and his staff officers were shot.
A similar situation developed on the island of Corfu. Fighting ensued, the Italians surrendered and the officers shot after a summary court martial. The record shows that a large number of Italian officers were shot in this manner. One instance shows that on 5 October 1943, 58 Italian officers were shot by troops subordinate to the XXII Corps.
********killing of these Italian officers was clearly unlawful. The evi************defendant shows that he believed that their killing was unla************ protests to Army Group E, based on the illegality of the Fu**********were successful in reducing the number of Italians to be subjected to the unlawful order, the fact remains that the killing of the reduced number was just as much a criminal act.
That he gave the order to the commandant of Cepholonia to execute the guilty officers only, he readily admits. The Italian soldiers were not franc-tireurs. They were still allies of Germany, insofar as their commanding officers then knew, although they had notice that an armistice had been signed with the Allied Powers. If they were prisoners of war by virtue of the surrender of the XIth Italian Army by General Vecchiarelli, it is clear that they were entitled to the protection of the Geneva Convention, 1929, regulating the treatment to be afforded prisoners of war. This was not done in any material respect. The reasoning set forth on the same subject in this opinion as it pertains to the defendant Rendulic applies here and is adopted by reference to the present situation. We are obliged to hold that the killing of the Italian officers was a war crime for which the defendant is responsible.
We find the defendant Lanz guilty on Counts One and Three.
The defendant Speidel assumed the position of Military Commander Southern Greece in early October 1942, and remained in the position until September 1943. From September 1943 until May 1944, he occupied the position of Military Commander Greece. His first assignment extended to a portion of the harbor Pyraeus and the adjoining coastal strip, a small section northeast of Athens and the Islands Salamis and Aegina. The balance of the area, including Athens, was controlled by the Italians. Under the second assignment, his authority extended over the whole of Greece although such authority was limited to certain functions. He had no tactical or operational tasks in this position, they being in the hands of Army Group E.
As Military Commander Southern Greece, his chief tasks were the maintenance of public peace and order within the area occupied by German forces, the security of German troops and installations, and jurisdiction over crimes committed against the Germans by the population. As Military Commander Greece, his principal tasks were the maintenance of peace and order, the administration of the judicial authority over the population as to crimes and offenses committed against the Germans and their military installations and the handling of negotiations with the Greek government, As in the case of his previous assignment, all tactical and operational matters were in the hands of Army Group E in Salonika.
Subordinated to the defendant were 7 Sub-Area Headquarters units. On and after 22 December 1943, reprisal measures could be ordered only by divisional commanders after agreement with the competent Sub-Area Headquarters. This order, promulgated by General Loehr as Acting Commander-inChief Southeast, provided in part: "The revenge for attacks, which are directed against the unit and its installation may be ordered only by a German commander with the disciplinary authority to punish of at least a division commander, in accord with the competent administrative sub-area Hqs. If an agreement is not reached, the competent territorial commander is to decide. Reprisal measures for losses in the air corps, navy, police and the OT are to be ordered principally by the territorial commanders."
That the Military Commander Greece could control the reprisal and hostage practice through the various sub-area headquarters which were subordinate to him cannot be questioned. This conclusion is borne out by the testimony of the defendant and charts prepared by him. It is plainly established that all administrative Sub-area Headquarters and Local Headquarters of his area of command were subordinated to the Military Commander Greece by the Keitel order of 21 December 1943.
The defendant contends that many of the acts changed against him were committed by or under the direction of the Higher SS and Police Leader, General Shimana. Whether General Shimana was subordinate to the Military Commander Greece insofar as the ordering of reprisal and hostage measures was concerned, is directly disputed. We are convinced that the record shows that he was. In this respect, the record quite conclusively shows that General Shimana was directly subordinate to Himmler as to matters of discipline, promotions and matters of similar import.
Ordinarily, Himmler insisted that all SS units remain wholly subordinate to him, a matter of which he was very jealous. But in the present instance, the matter is controlled by regulations issued by Fuehrer headquarters under date of 17 September 1943 which in part says: "By agreement with the Chief of OKW, the Reich Fuehrer SS, and Chief of the German Police appoints a Senior SS and Police Leader for the area of Military Commander Greece. The Senior SS and Police Leader is an office of the Reich Fuehrer SS and Chief of the German Police, which is subordinate to Military Commander Greece for the period of its employment in Greece. * * * The Military Commander is authorized to issue directives to the Senior SS and Police Leader which are necessary to avoid interference with Wehrmacht operations and duties. They take precedence over any other directives. The Senior SS and Police Leader will receive policies and directives for the execution of these duties from the Reich Fuehrer SS and Chief of the German Police. He will carry them out independently, currently and opportunely, informing the Military Commander Greece in as far as he does not receive any restrictive directives from the latter." The defendant admits that General Schimana considered himself subordinate to the Military Commander Greece as to the ordering and carrying out of hostages and reprisal killings. That the Senior SS and Police Leader was a member of the Staff of Military Commander Greece is shown by the Keitel order of 21 December 1943. The evidence is clear that the defendant is responsible for the execution of these measures except when they were taken during tactical operations on which occasions, of course, the responsibility rests with the tactical superior.
A review of some of the hostage and reprisal measures taken within area of the defendant's command and for which responsibility attaches, will be necessary. On 3 December 1943, the following report was made: "Nineteen Communist reprisal prisoners shot as revenge for the murder and wounding of Greek police, by the Senior SS and Police Fuehrer in Athens."
On 31 December 1943, the defendant reported: "In December on the Peloponnesus 758 people were shot to death, including reprisal operation 'Kalavrita'. In the remaining areas hostages were seized and to a small extent executions have taken place." On 9 January 1944, it was reported: "By (order of) Senior SS and Police Fuehrer 30 Communists were shot to death in reprisal for the murder of Greek policeman and for 36 attacks." On 10 January 1944, the Military Commander Greece reported: "50 Communists shot as reprisal measure for murdering 2 German police." On 13 March 1944, it was reported:
On the highway Sparta-Tripolis, truck convoy attacked. 18 Wehrmacht members dead, 25 heavily wounded, 19 slightly wounded and 6 Greeks wounded. As reprisal, state of emergency for Southern-Peloponnesus. Shooting of 200 Communist hostages." On 18 March 1944, the defendant reported in part as follows; "tendency to strikes and partial strikes at the railroad and several plants at the beginning of March were suppressed by energetic military measures: 50 communists were shot immediately, while others who were arrested are awaiting their sentence." While defendant was absent from his command for almost two months prior to 17 March 1944, he appears to have known of and approved the action taken by his deputy as shown by the foregoing report. On 22 March, 1944, the Military Commander Greece reported: "On the Peloponnesus, 5 Greeks hanged in reprisal for attack on railroad." On 22 March 1944, the defendant reported: "Administrative Sub-Area Headquarters Korinth Report: 52 hostages in Tripoli and 44 hostages in Sparta were shot as reprisal measure on 21.3." On 1 April 1944, defendant reported: "Up to now: Wehrmacht 1 dead, 14 wounded. Tracks blocked only for a short while. The execution of 70 Greeks at the locality of the incident has been ordered." On 2 April 1944, defendant reported: "65 communists in reprisal for railroad sabotage 10 South La Rissa shot to death at the scene of the incident." On 6 April 1944, defendant reports: "In Verria (60 Southeast West Soloniki). Fire attack by bandits during roll call of the battalion. Losses of our own: 4 dead, 11 wounded of which 8 are heavily wounded. 150 people suspected of belonging to bands shot in Verria as reprisal measures." On 8 April 1944, the defendant reported "50 communists shot to death for attack on German soldiers (3 dead) North Athens." On 25 April 1944, the defendant reported: "In Tripoli 12 known Communists shot in reprisal for a murdered Gendarmerie Officer." On 26 April 1944, the defendant reported: "Officers of the commander of the Ordnungs Police attacked by about 70 bandits while on duty trip on the road Arachowa-Amfissa (15 West Lewadia). Major Schulz and Major Krueger dead, Captain Unger and 4 men missing. Two passenger automobiles and two motorcycles were burned out. Three men found their way to Lewadia.
50 Communists from Lewadia were shot as reprisal measures. Additional reprisal measures are intended."
That the foregoing killings were excessive in most instances is readily apparent. That no connection existed between the population and the offense committed in many cases is shown. That the reprisal and hostage practice here employed was not one of last resort but one of the first instance in most cases can be seen. The incidents cited show cases where the hostages were taken and killed at a distance from the place of the offense. Court martial proceedings are not mentioned. That the incidents recited, indicating the practice followed, were not in accord with international law is beyond question. The responsibility of the defendant therefore has been established beyond a reasonable doubt.
We find the defendant Speidel guilty on Count One of the indictment.
Evidence has been produced in an attempt to show that the allied armies or units thereof, engaged in the practice of taking and killing hostages, and reprisal prisoners. There is but one instance cited that even resembles a case of shooting in reprisal. As to this, the evidence shows that four persons were shot by allied forces in Reutlingen, Germany, during the invasion. The official announcement proclaimed however, that those responsible for the killing of a French soldier had been apprehended and shot There is no convincing evidence that it was a hostage or reprisal shooting. It is not shown that a single hostage or reprisal prisoner had been killed by allied forces throughout the course of the late war. It also has been stated in the evidence and argued to the tribunal that the rules of war have changed and that war has assumed a totalitarian aspect. It is argued that the atom bombings of Hiroshima and Nagasaki in Japan and the aerial raids upon Dresden, Germamy, in the final stages of the conflict afford a pattern for the conduct of modern war and a possible justification for the criminal acts of these defendants. We do not think the argument is sound. The unfortunate pattern adopted in the second World War was set by Germany and its allies when hostilities were commenced. The methods of warfare employed at Rotterdam, Warsaw, Belgrade, Coventry and Pearl Harbor can aptly be said to provide the sources of the alleged modern theory of total war.
It is not our purpose to discuss the lawfulness of any of these events. We content ourselves with the statement that they can give no comfort to these defendants as recriminatory evidence.
Throughout the course of this opinion we have had occasion to refer to matters properly to be considered in mitigation of punishment. The degree of mitigation depends upon many factors including the nature of the crime, the age and experience of the person to whom it applies, the motives for the criminal act, the circumstances under which the crime was committed and the provocation, if any, that contributed to its commission. It must be observed, however, that mitigation of punishment does not in any sense of the word reduce the degree of the crime. It is more a matter of grace than of defense. In other words, the punishment assessed is not a proper criterion to be considered in evaluating the findings of the court with reference to the degree of magnitude of the crime.
It has been suggested in the course of the trial that an element of unfairness exists from the inherent nature of the organizational character of the tribunal. It is true, of course, that the defendants are required to submit their case to a panel of judges from a victor nation. It is unfortunate that the nations of the world have taken no steps to remove the basis of this criticism. The lethargy of the worlds statement in dealing with this matter, and many other problems of international relations, is well known. It is a reproach upon the initiative and intelligence of the civilized nations of the world that international law remains in many respects primitive in character. But it is a matter with which this tribunal cannot deal, other than in justifying the confidence reposed in its members by insuring to the defendants a fair, dispassionate and impartial determination of the law and the facts. A tribunal of this character should through its deliberations and judgment disclose that it represents all mankind in an effort to make contribution to a system of international law and procedure, devoid of nationalistic prejudices. This we have endeavored to do. To some this may not appear to be sufficient protection against bias and prejudice.
Any improvement, however, is dependent upon affirmative action by the nations of the world. It does not rest within the scope of the functions of this tribunal.
The reading of the opinion and judgment having been concluded, the tribunal will now impose sentence upon those defendants who have been adjudged guilty in these proceedings. As the name of each defendant is called, he will arise, proceed to the center of the dock and put on the earphones.
The defendant Wilhelm List will arise. Wilhelm List, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to life imprisonment. You will retire with the guards.
Walter Kuntze! Walter Kuntze, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to life imprisonment. You will retire with the guards.
Lothar Rendulic! Lothar Rendulic, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to twenty years of imprisonment. It is the order of the Tribunal that you will receive credit upon your sentence for the time already spent in confinement and pending trial, namely from September 13, 1946. You will retire with the guards.
Ernst Dehner! Ernst Dehner, on the count of the indictment on which you have been convicted, the Tribunal sentences you to seven years of imprisonment. It is the order of the Tribunal that you receive credit upon your sentence for the time already spent in confinement and pending trial, namely from December 29, 1946. You will retire with the guards.
Ernst von Leyser: Ernst von Leyser, on the counts of the Indictment on which you have been convicted the Tribunal sentences you to 10 (ten) years imprisonment. It is the order of the Tribunal that you receive credit upon your sentence for the time already spent in confinement and pending trial, namely: from December 18, 1946. You will retire with the guards.
Hubert Lanz: Hubert Lanz, on the counts of the Indictment on which you have been convicted the Tribunal sentences you to 12 (twelve) years imprisonment. It is the order of the Tribunal that you receive credit upon your sentence for the time already spent in confinement and pending trial, namely: From January 17, 1947. You will retire with the guards.
Helmuth Felmy: Helmuth Felmy, on the counts of the Indictment on which you have been convicted the Tribunal sentences you to 15 (fifteen) years imprisonment. It is the order of the Tribunal that you receive credit upon your sentence for the time already spent in confinement and pending trial, namely: From January 4, 1947. You will retire with the guards.
Wilhelm Speidel: Wilhelm Speidel, on the count of the indictment on which you have been convicted the Tribunal sentences you to 20 (twenty) years imprisonment. It is the order of the Tribunal that you receive credit upon your sentence for the time already spent in confinement and pending trial, namely: From December 13, 1946. You will retire with the guards.
The defendants Hermann Foertsch and Kurt von Geitner having been acquitted, shall be discharged from custody by the Marshal when the Tribunal presently adjourns. They will retire with the guards.
The Tribunal now stands adjourned without day.