Official transcript of the American Military Tribunal in the United States of America against Wilhelm List, et al, defendants, sitting at Nurnberg, Germany, on July 8, 1947, 0930, Justice Wennerstrum presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 5. Military Tribunal 5 is now in session.
God save the United States of America and this Honorable Tribunal.
THE PRESIDENT: Military Tribunal 5 will come to order.
The Tribunal will now proceed with the arraignment of the defendants in case number 7 pending before this Tribunal. The Secretary-General will call the roll of the defendants. The defendants will stand and answer their names when they are called.
(The Secretary-General then called the roll of the defendants.
WILHEIM LIST, MAXIMILIAN VON WEICHS, LOTHAR RENDULIC, WALTER KUNTZE, HERMANN FOERTSCH, FRANZ BOEHME, HELMUTH FEIMY, HUBERT LANZ, ERNST DEHNER, ERNST VON LEYSER, WILHEIM SPEIDEL, HURT VON GEITNER.
MR. DENNY: May it please your Honor, the prosecution has been advised by the custodian of the jail that since the serving of the indictment on the defendant Franz Boehme he has now become deceased, and with that in mind we would request that your Honors strike his name from the list of defendants.
THE PRESIDENT: It is the order of the Tribunal that the name of the defendant just mentioned by counsel be striken from this indictment.
THE SECRETARY-GENERAL: May this Honorable Tribunal please the defendants are all present and in the dock.
THE PRESIDENT: Mr. Secretary-General and counsel, the Tribunal desires to make this comment and enquiry at this time. We are advised that at a previous session and proceedings the indictment has been read to these defendants.
At this time, however, this Tribunal is desirous that a record be made at this time as to whether or not these defendants desire that the indictment be read again to them and unless each of the defendants waive the reading of the indictment it will be read again to the defendants at this time.
DR. LATERNSER: I am authorized to declare in the name of the defense, I am Dr. Laternser, defense counsel for the defendants Fieldmarshal von List and von Weichs, that the defendants waive the reading of the indictment.
THE PRESIDENT: May I enquire of counsel as to whether or not he is authorized to represent all the defendants in the waiving of the reading of the indictment at this time.
DR. LATERNSER: Yes, Mr. President, I am.
THE PRESIDENT: The record may then show that each of the defendants, by their counsel, unless otherwise indicated here at this time waive the reading of the indictment again to them. There being no indication of the desire of counsel or defendants that the indictment again be read, the record may then show that the reading at this time is waived by all defendants. Mr. Secretary-General you will call the defendants one by one for arraignment.
THE SECRETARY GENERAL: Wilhelm List.
BY THE PRESIDENT:
Q. Defendant Wilhelm List, have you counsel?
A. Yes.
Q. Has the indictment in the German language been served upon you at least thirty days ago?
A. Yes.
Q. Have you had an opportunity to read the indictment?
A. Yes.
Q. Have you read the indictment?
A Yes.
Q. Defendant Wilhelm List, how do you plead to this indictment, guilty or not guilty?
A. Not guilty.
Be seated.
THE SECRETARY GENERAL: Maximilian Von Weichs.
BY THE PRESIDENT:
Q. Defendant Maximilian Von Weichs, have you counsel?
A. Yes.
Q. Has the indictment in the German language been served upon you at least thirty days ago?
A. Yes.
Q. Have you had an opportunity to read the indictment?
A. Yes.
Q. Have you read the indictment?
A. Yes.
Q. Defendant Maximilian Von Weichs, how do you plead to this indictment, guilty or not guilty?
A. Not guilty.
Be seated.
THE SECRETARY GENERAL: Lothar Rendulic.
BY THE PRESIDENT:
Q. Defendant Lothar Rendulic, have you counsel?
A. Yes.
Q. Has the indictment in the German language been served upon you at least thirty days ago?
A. Yes.
Q. Have you had an opportunity to read the indictment?
A. Yes.
Q. Defendant Lothar Rendulic, how do you plead to this indictment, guilty or not guilty?
A. Not guilty.
Be seated.
TEE SECRETARY GENERAL: Walter Kuntze.
BY THE PRESIDENT:
Q. Defendant Walter Kuntze, have you counsel?
A. Yes.
Q. Has the indictment in the German language been served upon you at least thirty days ago?
A. Yes.
Q. Have you had an opportunity to read the indictment?
A. Yes.
Q. And have you read the indictment?
A. Yes.
Q. Defendant Walter Kuntze, how do you plead to this indictment, guilty or not guilty?
A. Not guilty.
Be seated.
THE SECRETARY GENERAL: Hermann Foertsch.
BY THE PRESIDENT:
Q. Defendant Helmuth Felmy, do have counsel?
A. Yes.
Q. Has the indictment in the German language been served upon you at least thirty days ago?
A. Yes.
Q. Have you had an opportunity to read the indictment?
A Yes.
Q. And have you read the indictment?
A Yes.
Q. Defendant Helmuth Felmy, how do you plead to this indictment, guilty or not guilty?
A. Not guilty.
Be seated.
THE SECRETARY GENERAL: Hubert Lanz.
BY THE PRESIDENT:
Q. Defendant Hubert Lanz, do you have counsel?
A. Yes.
Q. Has the indictment in the German language been served upon you at least thirty days ago?
A. Yes.
Q. And have you had an opportunity to read the indictment?
A. Yes.
Q. And have you read the indictment?
A. Yes.
Q. Defendant Hubert Lanz, how do you plead to this indictment, guilty or not guilty?
A. Not guilty.
Be seated.
THE SECRETARY GENERAL Ernst Dehner.
BY THE PRESIDENT:
Q. Defendant Ernst Dehner, do you have counsel?
A. Yes.
Q. And has the indictment in the German language been served upon you at least thirty days ago?
A. Yes.
Q. Have you had an opportunity to read the indictment?
A. Yes.
Q. Have you read the indictment?
A. Yes.
Q. Defendant Ernst Dehner how do you plead to this indictment, guilty or not guilty?
A. Not guilty.
Be seated.
THE SECRETARY GENERAL: Ernst von Leyser.
BY THE PRESIDENT:
Q. Defendant, Ernst von Leyser, do you have counsel?
A. Yes.
Q. Has the indictment in the German language been served upon you at least thirty days ago?
A. Yes.
Q. And have you had an opportunity to read the indictment?
A. Yes.
Q. And have you read the indictment?
A. Yes.
Q. Defendant, Ernst von Leyser, how do you plead to this indictment, guilty or not guilty?
A. Not guilty.
Be seated.
THE SECRETARY GENERAL: Defendant Wilhelm Speidel.
BY THE PRESIDENT:
Q. Defendant Wilhelm Speidel, do you have counsel?
A. Yes.
Q. Has the indictment in the German language been served upon you at least 30 days ago?
A. Yes.
Q. And have you had an opportunity to read the indictment?
A. Yes.
Q. And have you read the indictment?
A. Yes.
Q. Defendant Wilhelm Speidel, how do you plead to this indictment, guilty or not guilty?
A. Not guilty.
Be seated.
THE SECRETARY GENERAL: Kurt von Geitner.
BY THE PRESIDENT:
Q. Defendant Kurt von Geitner do you have counsel?
A. Yes.
Q. Has the indictment in the German language been served upon you at least thirty days ago?
A. Yes.
Q. And have you had an opportunity to read the indictment?
A. Yes.
Q. Have you read the indictment?
A. Yes.
Q. Defendant Kurt von Geitner, how do you plead to this indictment, guilty or not guilty?
A. Not guilty.
Be seated.
THE PRESIDENT:
The pleas of the defendants, as here made will be entered by the Secretary General in the records of this Tribunal. The Court or Tribunal desires to inquire if there are any other matters which are desired to be presented to this tribunal at this time.
MR. DENNY: The prosecution has nothing to say.
THE PRESIDENT: Do counsel for any of the defendants desire to present any matters to the Court at this time?
DR. LATERNSER: The defense likewise has no request to make at this time.
THE PRESIDENT: This Tribunal is advised that the Tribunal will be in recess now until the 15th of July, one week from today.
We wish to state,--and I am speaking for the Tribunal,-that we are desirous that this Trial be expedited as promptly as possible. In making that statement, however, we do not intend, nor will it be our purpose, to in any way limit either the prosecution or counsel or any of the defendants.
We ask, and it will be the intention of this Tribunal to carry on the proceedings as expeditiously as possible, keeping in mind at all times, that the rights of the prosecution and the defendants will be respected in every degree.
The Tribunal, therefore, will be in recess until Tuesday morning, July 15, 1947, at 9:30 o'clock in the morning.
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Wilhelm List, et al., Defendants, sitting at Nurnberg, Germany, on 15 July 1947, 0930-1630, Justice Wennerstrum, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 5.
Military Tribunal 5 is now in session. God save the United States of America and this honorable Tribunal.
THE PRESIDENT: This Tribunal is convened at this time for the purpose of the presentation of the opening statements on behalf of the prosecution. Prior to the presentation of this opening statement, I wish to make a statement relative to certain motions which have been filed by the defense counsel. These motions will receive the consideration of this Tribunal following the presentation of the opening statements by the prosecution. Is the prosecution ready?
GENERAL TAYLOR: Yes, Your Honor.
THE PRESIDENT: You may proceed.
GENERAL TAYLOR: May it please Your Honors.
This is the first time, since the conclusion of the trial before the International Military Tribunal, that high-ranking officers of the Wehrmacht have appeared in this dock, charged with capital crimes committed in a strictly military capacity. The conviction and execution of Keitel and Jodl, pursuant to the judgment and sentence of the International Military Tribunal, gave rise to wide-spread public comment, not only in Germany but also in the United States and England. Since that time, there have been several other note-worthy trials of German military leaders.
In the British zone of occupation, Generals von Falkenhorst and Blumentritt have been tried for the murder of prisoners of war. General Sepp Dietrich and his subordinates have been charged in the American zone with responsibility for the Malmedy massacre. Generals von Mackensen and Maeltzer faced a British military court in Italy in connection with the Ardeatine caves massacre of Italians. In Yugoslavia and Greece, Generals Alexander Loehr and Friedrich Wilhelm Mueller have been tried and condemned for war crimes committed in southeastern Europe.
Most recently, Fieldmarshal Albert Kesselring was tried by a British military court in Italy. The court found him guilty of responsibility for the Ardeatine caves atrocity, as well as for other war crimes against Italians committed by troops under his command in northern Italy. It sentenced him to be shot to death. This sentence of capital punishment against one of the outstanding military figures of the recent war again stimulated much discussion, and encountered not inconsiderable criticism, particularly in England. Whether or not as a result of such criticism, about ten days ago the British reviewing authorities commuted the death sentences against Kesselring, von Machensen, and Maeltzer to life imprisonment.
Because of the unusually deep interest which cases of this type have aroused, not only in military and legal circles but throughout the general public, and because the scope and sweep of this case is much greater than any of the previous cases to which I have referred, the prosecution may fairly be required, in opening this case, to do much more than outline the evidence which will be adduced in support of the indictment. Indeed , as this case progresses, I think it will rapidly appear that the evidentiary questions are of secondary importance. That the killings charged in the indictment occurred, that they were carried out by troops under the command of these defendants, and that they were in fact ordered by the defendants will not, I believe, be denied. The naked facts are terribly clear.
Nor, after the evidence is laid before you, can the true meaning of this case be drawn from learned arguments by counsel, analyzing and refining the laws of war as they are written in the Hague Conventions and in textbooks on international law. Of necessity, we will hear much discussion of hostages, and reprisals, and the necessary qualifications of belligerent armed forces. But the exposition of these technical problems of the law of land warfare, important as it may be, does not reach to the heart of this or similar cases in the year 1947.
The doubts which have been expressed concerning the wisdom and value of trials such as this one arise from a variety of conceptions and misconceptions. To some extent, these doubts are the natural result of the passage of time. Hostilities in Europe ended over two years ago, the devastated and stricken condition of Germany has aroused sympathy, and there is general desire to wipe the unhappy past from memory. So we hear it suggested by some that the present plight of Germany should shield men such as these from the consequences of crime, if criminals they be. But Germany is not the only devastated and stricken land, and for every crime there is not only a criminal but a victim. In the minds of many peoples are memories so mordant that they can not be forgotten. If the course of justice is stayed, these sores will only fester the longer and spread the wider. We can not restore the moral fabric of Europe by laying a shroud over unshriven and unburied corpses.
Other and quite different doubts have been raised by some who, with a blurred vision of military discipline; suppose that military men are a sort of race apart, who are not responsible for their actions because they are expected to obey orders. But the law and code of the German Army itself says that it is the duty of every soldier to refuse to obey orders that he knows to be criminal. This may be hard for the ordinary soldier acting under pistol-point orders from his lieutenant.
It is far less difficult for high-ranking commanders such as the men in the dock. These men are not named in the indictment because they are generals; they are named because they are charged with the responsibility for crimes. They must be acquitted if, under the law and the evidence, that responsibility can not justly be attributed to them, but they can not be acquitted merely because they are generals, any more than they can be indicted for that reason alone.
More fundamental and more cogent, I believe, are the doubts of those who question the wisdom and justice of attempting, by criminal prosecution, to enforce the laws of war with meticulous precision. Wars, such people say, are not fought on the dueling ground, and a polished observance of ritual can not be expected. Furthermore, there is a general feeling, not without substantial basis, that some of the laws of war as written in the Hague Conventions are obsolete, and on both sides were honored only in the breach. Then, too, it is felt, and rightly, that violations of the laws of war are committed in the best regulated armies, and it is therefore urged that the commanders should not be held to a strict and rigorous account for occasional laspses. I think that unarticulated doubts of this latter description underlie the criticism leveled against the death sentence which was imposed upon Kesselring, particularly criticism emanated from high-ranking Allied commanders who fought against him. The degree of Kesselring's guilt is, of course, not at issue in this proceeding, but in the course of it we will of necessity find occasion to draw certain comparisons and contrasts between the charges which were laid against Kesselring and those which are laid against the defendants here in the dock.
This case will achieve international meaning and significance, I believe, only if we adopt a realistic and practical approach to such questions.
And I believe that such an approach has been adopted in the framing of this indictment, in the selection of evidence in support thereof, and in the basic theory of the prosecution's case. The prosecution fully recognizes that the laws and usages of warfare must be altered and adapted to reflect the developments in this terrible art which man has learned to practice with such appalling proficience. We have not sought and will not seek in this case to make murderers out of soldiers for the violation of rules framed in 1907, if those rules today are outmoded and generally disregarded.
So, too, the prosecution takes full account of the true nature of modern warfare as it relates to the responsibilities of commanders. We would not have arrested the defendants, we would not have requested that this court be constituted, and we would not have brought charges against these men, if they were to be accused of mere carelessness or responsibility for occasional or sporadic crimes committed by their troops.
On the contrary, we charge that these men inaugurated and executed a deliberate program of terror and extermination which was boundless in its arrogant contempt for the inhabitants of the lands which the Wehrmacht invaded and overran. It is perhaps the most elementary principle of human intercourse--the bare subsistence level of civilization--that human life should not be destroyed needlessly, or merely because it is regarded as inferior. This is not an elevated or noble principle, although the entire structure of human dignity is built upon it. This principle merely enunciates mankind's instinct of self-preservation, and its observance protects man from selfdestruction. It is so deeply roted in civilization that the world insists on its observance in war as well as in peace, and the laws of war are, essentially, nothing more than a gloss on this fundamental rubric. It is for denying and undermining the very basis of civi lization that these men are indicted.
Let us turn, then, to the indictment in which the charges against these men are set forth. Counts One and Two of the indictment relate to murders and other crimes committed against the civilian inhabitants of Greece, Yugoslavia, Norway, and Albania during the German occupation of those countries. Count Three charges the killing, in violation of the rules of war, of prisoners of war and other members of the armed forces of countries at war with Germany, and of members of the Italian aimed forces after Italy's capitulation to the Allied nations. Count Four accuses the defendants of ordering and committing murders and other crimes in furtherance of the "racial" and economic policies of the Third Reich--the slaughter of Jews, the imprisonment and mistreatment of other segments of the civilian population, and the deportation of thousands to slave labor in Germany.
Count One, more particularly, charges the murder of many thousands of civilians under the color of retaliation or "reprisal" for attacks on German forces or military installations, As will appear from the evidence, these killings were carried out pursuant to a plan and system, embodied in orders issued, distributed, and executed by the defendants and others, which called for the retaliatory killing of civilians at arbitrarily established ratios, such as 100 civilians for every German soldier killed, and 50 for each soldier wounded. Usually the Germans referred to the victims of these mass executions as "hostages".
As I said at the outset, the proof of these acts will present no difficulty. The evidence, is all set forth in orders, reports, and other documents issued and circulated by the defendants themselves. Lest your Honors find it hard to credit what the written word so starkly exhibits, the oral testimony of eye-witnesses will also be spread on the record.
The laws of war do, of course, recognize that in certain circumstances belligerents may take steps by way of reprisal. The taking of hostages, too, has been practiced between nations since ancient times. The killing of hostages is a much more recent development; it is not the emblem of an enlightened way of life, and most of the precedents are found in the history of the Germany army and its exploits during the First World War. Furthermore, as will clearly appear, most of the victims who met their death before German firing squads at Belgrade, or Kraljevo, or Athens, or Klissura were not "hostages" in any true sense of the word.
We will, in due course, endeavor to set forth in some detail the rules of war as they relate to "reprisals" and "hostages". At this point I wish to make only two observations. Both the London Charter and Control Council Law No. 10 declare the killing of hostages to be a violation of the laws of war. This declaration is binding on the Tribunal and the prosecution alike, and the prosecution believes that it is an accurate statement of the law. But the theory of the prosecution's case under Count One does not rest on this rule. We may concede for purposes of argument that the execution of hostages may under some circumstances be justified, harshly as those words may ring in our ears. But the law must be spared the shame of condoning the torrent of senseless death which these men, let loose in southeastern Europe.
Count Two of the indictment speaks in terms of destruction and devastation, totally unjustified by military necessity. Here, too, the victims were the peoples of Norway, Ygoslavia, Greece, and Albania, who saw their homes in flames, their towns and villages erased and their possessions looted and scattered.
Count Three of the indictment is quite different from the first two counts. The victims of the crimes charged in Count Three were not civilians and non-combatants; they were, for the most part, members of the Yugoslav and Greek armed forces who continued to resist the German invader after the defeat of the major units of the Greek and Yugoslav armies and the replacement of their national governments by "puppet" governments or German military occupational administration.
Pursuant to orders issued and executed by the defendants, these troops who continued to resist were not recognized by Germany as belligerents, and when captured were commonly denied the status of prisoners of war and were shot or hanged. We will, subsequently, discuss the rules of war pertaining to the qualifications of belligerent armed forces.
Count Three also charges other crimes against members of the armed forces of various other allied nations, particularly in pursuance of the notorious German order of October, 1942, under which numerous Allied "commandos" were coldly murdered after their capture. It also charges the murder of many officers and men of the Italian armed forces at the time of and shortly after Italy's surrender to the Allies.
Count Four, finally, strikes a still more sombre note. The crimes charged therein were in no way related to military operations. We find the defendants and their troops helping to "purge" southeastern Europe of the so-called "inferior peoples", such as Jews, and "politically unreliable" individuals such as "democrats" and "nationalists". We find them helping to enslave and deport the inhabitants of these lands to join the millions of other unfortunates from all over Europe who were sucked into Germany to work for their conquerors in mines and factories. We see the German army in a shameful role as the servant and tool of Himmler, Sauckel, and other Nazi worthies.
Such in summary, are the changes in this indictment. The Tribunal will observe, from the dates of the particular incidents set forth as illustrations of the charges, that all four courts cover the three and one half years from April 1941 to approximately October 1944.
All four types of crime were committed throughout this period, and often a single episode involved the commission of crimes under all four counts. Consequently, in outlining the evidence today and in presenting it during the next few weeks, the prosecution proposes to proceed chronologically, rather than count by count. We believe this will be conducive to a more orderly and intelligible presentation However, in presenting particular documents or witnesses, we will of course, specify which count or portion of a count the particular piece of evidence supports.
Before taking up the evidence in more detail, it will be helpful to spend a few moments in outlining the structure and organization of the German military machine, and the way in which it functioned in occupied countries, particularly in southeastern Europe. The prosecution has already submitted to the Tribunal, and to defense counsel, a brief memorandum on the organization of the German army, together with a series of charts showing the chain of command of the more important military units in southeastern Europe and northern Norway, with several maps of Yugoslavia, Greece, and Norway, and other mechanical aids to the understanding of this case. One of these charts has been enlarged for display on the wall of the courtroom.
A. The Supreme Command of the German Armed Forces.
DR. LATERNSER (Counsel for defendants List, and von Weichs): Mr. President, I am sorry I have to interrupt at this moment. I am surprised to hear right now the Tribunal has been presented by the prosecution with an information referring to the defense. We are now in a criminal procedure and as far as I know the person who makes a statement has to prove that it is true. I don't know now how the prosecution wants this information to be understood. If it should be regarded as evidence before this Tribunal in that case I must object to the submitted information already to this Tribunal for a summary of the prosecution is not a means of the evidence.
We know the criminal procedure and we know that it consists of evidence and documentary evidence. I cannot see from the information that I have received that a document is in question not been signed by anybody. However, if it is merely information that is no evidence then informing the Tribunal by this material, as far as I know foreign law, can only then be right when the defense agrees with it.
For information of the Tribunal can merely be affected when everybody agrees. In any case if this information is supposed evidence it has to be rejected. We are merely dealing with statements of the prosecution which have now to be proved, for which evidence has to be submitted. I just want to put an example now and I shall soon finish. This information also refers to this chart here, Chart D. It is supposed to serve as information for the Tribunal, to brief the Tribunal. The moment when I entered the court I saw two basic mistakes in this chart. The mistakes are in the chart although in the first trial before the Military Tribunal the position of the O.K.W. was discussed at large.
From this sketch we can see that the O.K.W. and the O.K.M. and O.K.H. -- they were supposed to be one group but that was never the case. The OKW was merely a working staff of Hitlee's and if one regards the results of the first trial, this staff cannot be put right or left in the chart beside that little box, that means "Hitler", this is a basic mistake.
I shall soon finish. The nedt mistake results from the fact that, for instance, army group F is connected with a line supposed to mean technical subordinates. That also is not correct. I therefore ask the Tribunal to ask the prosecution that the information which was submitted by the prosecution may be withdrawn for the assumptions contained in this information the prosecution will have to submit evidence.
GENERAL TAYLOR: May it please Your Honors, the document in question is, as I stated quite briefly, not evidentiary. It is in the nature of a brief. Dr. Laternser, who has been before the IMT, is fully familiar with the procedure. There has been such a brief submitted before every trial that has taken place in this courtroom. It is not evidentiary. It is to enable the Tribunal and defense counsel to follow the opening statements.
The matters contained therein will, to be sure, be supported by documents which will be submitted during the prosecution's case in chief.
THE PRESIDENT: The Tribunal, speaking through the presiding judge, wishes to state that this document which I now have before me was considered by the Tribunal as merely informative. The members of this Tribunal are members of courts in the States who have had many years of not only trials but Appellate experience, and I am certain that I speak the thoughts of my associates when I say to counsel that we shall only decide this case upon the evidence as presented.
It should be kept in mind that the members of this Tribunal have been in this city here, and its surrounding country, for only about one month. Naturally we are desirous, and it is necessary, that we become informed on the procedure that is to be followed in these cases. It is necessary that we learn about the type of the case and the things that will be presented, but I assure counsel for the defense, the defendants, and all other parties concerned that the decision of this court will be based solely upon the evidence as presented, and after counsel for the defendants and the defendants themselves have had a full and fair opportunity to present any matters in rebuttal which may have been presented on behalf of the prosecution.
You may proceed, General Taylor.
GENERAL TAYLOR: When Hitler came to power in 1933, the German armed forces (which then consisted only of the Army and Navy, since the Air Force did not yet officially exist) were controlled and administered by a cabinet department called the Reich Defense Ministry. Under the Reich Defense Minister, at that time von Blomberg, the highest officers of each branch of the service were called respectively the Chief of the Army Staff, that being General von Fritsch, and the Chief of the Naval Staff (Admiral Raeder).In May 1935, when Germany started openly to overthrow the armament restrictions of the Versailles Treaty, von Blomberg was given the title of Reichsminister for War and Commander-in-Chief of the Armed Forces, and von Fritsch and Raeder were thereafter called the Commanders-inChief of the Army and Navy respectively.