(A recess was taken until 1515 hours.)
THE PRESIDENT: You may proceed.
DR. LATERNSER:
A short time later.
General Boehme ussied an order dated 9 October 1941. Paragraph I of this order, the contents of which are the same as Paragraph 3e of the OKW order of 16th September 1941, shows that General Boehme knew at this time of the order of 16 September 1941. But he did not, however, refer to it. He certainly urged the ruthless supression of the insurrection by purely military means, and the most severe punishments by courts martial proceedings.
But from this order of General Boehme it is also apparent that he already knew the Field Marshal's List's order of 4 October 1941 because only these men suspected of belonging to the bands were to be retained as hostages. In spite of the OKW order, ratios were not mentioned. This is proof that General Boehme correctly grasped the meaning of the order of 4 October 1941.
On 10 October 1941 General Boehme issued another order containing "additions" to tho OKW order of 16 September 1941. In absolute contradiction to his order from the previous day, he decreed that in his command area the OKW orders were to be carried out in the most sevee form. He further ordered the competent territorial commanders to carry out the ratios of 1:100 or 1:50 mentioned in the OKW order. The OKW order of 16 September 1941 received hereby a rigid form. This made is the duty of the subordinate headquarters to proceed with the shootings at the ordered rate. This order by General Boehme dated 10 October 1941 could not remain without effect.
Numerous orders issued subsequently by his subordinate headquarters referred to this order. His own office too referred to it in its later orders. It became indicative of the tendency of General Boehme throughout his future activity.
The Chief of the Security Police and of the SD in Berlib stressed in his report of 21 October 1941 that it was this order which first "created a completely clear line for rughtless vigorous action by the troops."
This order by General Boehme dated 10 October 1941 was sent to his subordinate agencies. The LXV Corps, whose staff as well as that of General Boehme, was stationed in Belgrade, received it on 13 October 1941. This can be seen from the fact that the Corps passed the order on by teletype the same day.
This order also went for information to the Armed Forces Commander Southeast.
Your Honors will recall that during his examination Field Marshal List stated that he did not know this order. This statement is correct, as I will explain. The passing-on of orders for information to agencies to whom the order was not addressed and to whom the order could not have been addressed because they were superior, is generally not dealt with so quickly as in the case of orders sent to agencies for action. But even if the order was sent by the first available courier service on account of the distance and the bad transport connections, it could not possibly have arrived before Field Marshal List was taken ill. Therefore, Field Marshal List did not knew about this order from General Boehme, He heard about its existence and its contents for the first time here in Nuernberg.
There can be no doubt about this. With the order of 4 October 1941 Field Marshal List considerably mitigated the OKW order of 16 September 1941, although he had no right to do this. How much more would he have done this to an order from a subordinate agency, which wanted, the OKW order rigidly applied in all its harshness.
May it please the Tribunal It could not definitely be established in this trial what considerations led General Boehme to this order of 10 October 1941, which was a flat contradiction of the one dated the previous day.
But one thing is contain; the order of 10 October was based on the OKW order of 16 September to which he expressly refers. And probably the serious crime near Topola which caused the deaths of numerous German soldiers and also Turner's influence can be regarded as external reasons.
In my description on the facts of the case I arrived at the date of Field Marshal List's serious illness. This was 15 October; on 17 October he had to undergo an operation. From 15 October 1941 onwards he performed no official duties whatsoever.
The description of the facts of the case, however, would be incomplete if I did not also dealt with the individual events charged against. Field Marshal List by the prosecution.
These are the incidents near Topola, Kraljevo, Valjovo, Kragujevac.
In addition I shall have to go into the surprise raid against General Lomshar, and the case of Colonel von Stockhausen, the incidents in Skela, Zagreb, Uzice, Grabovac, also some occurences in Greece.
Topola:
On 2 October 1941 a supply unit of the Army Signal Regiment 521 was suddenly attacked by partisans and overwhelmed after a fight. According to the testimony of the witness Krage and amongst others, an affidavit by the eye-witness Kerbler those Germans captured were machine gunned or killed with a coup de grace (the pistol close to the head.) 22 German soldiers lost their lives, a large number were missing.
The Plenipotentiary Commanding General in Serbia, General Boehme at the express instruction of the OKW, ordered the shooting of 2,2000 arrestees. The shooting were carried out on 9 and 11 October 1941 by a detachment of the Signal regiment concerned.
From the report of the leader of the detachment it can be seen that altogether 449 arrestees were shot. The rest of the prosecution documents give me reason to believe that additional shootings took place.
All the reports of the military agencies mention that the shooting of 2,2000 arrestees was ordered and that shooting were in progress. From this formulation it is clearly apparent that it was drawn up in this way with regard to the direct order of the OKW to short 2,200 arrestees. Various affidavits submitted by the defense, as well as the testimony of the witness Krage, confirm the fact that altogether 449 arrestees were shot instead of the ordered number of 2,200. The reports from the Chief of the Security Police and the SD dated 20 and 21 October 1941 alone which moreover do not completely coincide do not prove the shooting to the extent ordered.
Field Marshal List, although he cannot remember definitely, thinks he was informed of the surprise raid by the bands near Topola. The question is only how much he knew about the reprisals and their execution.
The question of whether the Hitler order in this case went directly to Boehme or not, remains open. There is contradictory testimony on this matter which I think probably have been cleared up by submission of the war diaries of the 12th Army and of the Plenipotentiary Commanding General in Serbia.
The defense always endeavoured to do this. Unfortunately, however they did not succeed because in spite of the ruling of the Tribunal they had at their disposal only part of the material kept in Washington.
In any case, the prosecution has offered no proof whatsoever that Field Marshal List had knowledge at that time of the Fuehrer Order which might possibly have gone through his command because the witness Pemsel only testified about a telephone conversation with Colonel Kuebler, while Field Marshal List himself in no way recalled any such incident.
The first report by General Boehme to the Armed Forces Commander Southeast about the shooting of 2,200 arrestees, ordered by him, bears the date of 9 October 1941.
Field Marshal List, however, had left by plane for Crete on the 8 October 1941 and returned only on 11 October 1941 to his headquarters. Thus he could have gained knowledge oh 11 October 1941 at the earliest of the retaliation measures then ordered by General Boehme, that is at a time the shooting of the 449 arrestees had already been completed. It could not be established beyond doubt whether on his return Field Marshal was informed at all-or what extent-about the retaliation measures ordered by General Boehme. He has no recollection about it himself. The entry in the diary of 11 October does not mention the incident In this connection I wish to draw your attention to the following:
According to the documents it is fully established that Field Marshal List after his return from Crete dispatched the Director of Police Loos as advisor in police matters to the Plenipotentiary Commanding General in Belgrade. Loos arrived there on 13 October 1941. Field Marshal List intended to fly to Belgrade on 16 October 1941, in order to gain personal knowledge of the situation prevailing there. The trip did not take place because Field Marshal List fell ill on 15 October.
It will remain a secret what the main reason for the intended trip was. Field Marshal List has no recollection. Could the cause not have been that he wanted to make a personal investigation of the incidents? In view of the personality of Field Marshal List I maintain this to be the only possible interpretation.
In summary it must be said:
The retaliation measures carried out in the Topola case - caused by the behaviour of the partisans -- were neither ordered by Field Marshal List, nor was there any possibility for him to prevent their execution, once the events had taken their course.
Kraljevo.
The prosecution wants to charge Field Marshal List with the incidents in Kraljevo.
From a prosecution document it becomes clear that from 14 October 1941 onwards fighting for the city of Kraljevo took place for several days. The insurgents oven used artillery in these fights.
For further investigation into this case the witness von Sydow was examined who at that time was stationed in Karljevo with his unit. He testified that not the number asserted by the prosecution but that 300 Serbs were shot to death.
As, however, the fighting for Karljevo only started on 14 October 1941 and reports about it to the Armed Forces Commander Southeast bear the dispatch date of 18 October and the receipt stamp of the Armed Forces Commander Southeast of 19 October, Field Marshal List could not have learned of the retaliation measures before he left the service.
Valjevo.
Very similar to this are the facts in the Valjevo case.
The order for the shooting of 2,200 Serbs originates with the Plenipotentiary Commanding General in Serbia. It is dated 19 October 1941 and refers expressly to the order of 10 October 1941.
A report by the 734 Infantry Regiment, however, shows that in the execution of this order altogether "101 men" were executed. In this case, too, proof is lacking that 2,200 Serbs were actually shot to death.
Above all the decisive point is that the incident in question took place after Field Marshal List left the service.
Kragujewac.
The incidents in Kragujevac depict a similar situation.
From the report of the District Headquarters Kragujevac dated 20 October 1941 it becomes clear that the retaliation measures were ordered by General Boehme on 10 October 1941. An order by the Military Administration Chief, Dr. Turner, is also mentioned. Whether or not the ordered number were actually shot to death must remain open to doubt according to the report by the 1st Company of Infantry Regiment 724.
At any rate these shootings were not based on an order from Field Marshal List. They could also not have come to his knowledge because the incident took place on 20 October 1941 - that is, after he left the service.
In summarizing I maintain with regard to these individual cases:
a) The shootings were not executed on the order of Field Marshal List, but were based on orders by the Plenipotentiary Commanding General in Serbia.
b) Field Marshal List did not know of the reprosal measures because -- with the exception of the Topola case -- they occurred after he had left the service.
But even in the Topola case knowledge has not been proven and is only possible for a time which lies after the execution of the counter measures. The radios of the OKW order of 16 September were in no case met.
Similar to this are the facts in the subsequent cases:
The attack on General Lomschar was reported to the Armed Forces Commander Southeast on 18 July 1941. This report was not initialled by Field Marshal List; therefore, it was not submitted to him. The possibility that the incident was reported to him orally can not be excluded.
In connection with the attack, the area was combed-out by police forces according to a directive by the Military Commander Serbia. The Administrative Sub-area Headquarters Uzize ordered on 20 July, to execute 52 Communists as a reprisal move. Therefore these are shootings which were apparently ordered by the Military Commander Serbia.
A note about the shootings is to be found only in the activity report of the 704th Infantry Division which did not, however, go to the Armed Forces Commander Southeast.
If the prosecution were of the opinion that this event was widely discussed and that, therefore, Field Marshal List must have heard about it while he was in Belgrade, then this is a pure guess on the part of the prosecution and lacks all proof. The prosecution therefore, has brought no evidence in this case for the fact that Field Marshal List gained knowledge in any form of the shooting. He certainly did not order it.
In yet another case at the beginning of August 1941, 81 Serbs were shot by Serbian gendarmerie, at the order of Colonel von Stockhausen, the Commander of Sub-area Administrative Headquarters Uzize, in retaliation for an attack on a police car.
Here we are again dealing with an independent order of a Commander of a. Sub-area Administrative Headquarters.
Owing to the temporary ministerial crisis the agency of the Armed Forces Commander Southeast was put in charge of this case on 10 August 1941; that is, at a time when Field Marshal List was absent.
The evidence does not furnish any indication to the effect that Field Marshal List on his return was informed in detail about this event which had occurred several weeks previously. Also in this case it must be stressed that the situation had in the meantime become extremely aggravated and that in consequence there were other problems which took precedence.
Also the events at Skela, in the course of which, according to the available reports, a village was burnt and fifty communists were hanged on 15 August 1941, in retaliation for an attack on a police car occurred during the absence of Field Marshal List. These measures were carried out by independent orders of a subordinate command agency.
The report of the German General at Zagrab about the shootings there reached the Armed Forces Commander Southeast on 10 August 1941, once again at a time when Field Marshal List was absent. It was of purely informative character in view of the fact that the shooting could only have been ordered by the Croation Government itself.
These individual cases can be summarized as follows:
a. In all cases the shootings were ordered by commanders of subordinate agencies, in the last case by order of the Croation Government.
b. The entire evidentiary material does not furnish any indication that these measures were caused by higher orders. They were ordered at a time when Field Marshal List had not issued any orders relating to the fighting of partisans.
c. All these occurrences took place at a time when Field Marshal List was on leave, so that even if any reports should have arrived at the agency of the Armed Forces Commander Southeast he could not have obtained any knowledge of those measures.
d. The prosecution has not proved that these reports were submitted to Field Marshal List after his return.
e. If, however, these occurrences were not caused by any order of Field Marshal List and if he was not informed of then, then they cannot be charged against him either.
This brings me to a group of individual, cases which occurred at a time when, Field Marshal List was present in the Balkans and had command authority as Armed Forces Commander Southeast.
In this connection I can only point to a few cases which appear to no of importance. All of them are either not known to Field Marshal List or he cannot remember them anymore; by virtue of his position they could in many cases not have come to his knowledge. Inasmuch as they were possibly reported to him after all, he could count and had to count on lawful measures by the Commanders especially since also in the army regulations executions were permitted only after proceedings before a military court or a summary court martial. Field Marshal List had to be able to take that view also if the reports did not mention any court proceedings which had taken place prior to the measures. Why should it have occurred to Field Marshal List that crimes might possibly have been committed? Which Military unit perpetrates a crime and immediately reports it to its superior agency?
But also in this case I should like to state that Field Marshal List never in any case issued a retaliation order.
The case Rtany concerns shootings in retaliation for a raid on the mine of the same name. The Sub-area Administrative Commander inwuired from the Commander Serbia on 27 August 1941 and received the reply that those 15 to 20 hostages which had been set aside for that purpose could be shot "should conditions warrant that measure". Thus we are dealing here with correspondence between subordinate command agencies. The reply was made without Field Marshal List' s knowing anything about it, and there was no reference to any order of his because such orders did not exist.
The daily report about the shooting of those 20 communists was not submitted to Field Marshal List or also it would have been initialed by him.
COURT V, CASE VII
Since attacks, acts of sabotage, etc. had considerably increased in number and extent it can be assumed for certain that individual reprisal measures were not reported to him. This would also have had to be proved by the prosecution.
10. In the case Uzice it can be gathered from the reports to the Armed Forces Commander South East dated 19 September 1941 that "165 bandits" had been shot there. Thus it could not have been a reprisal measure. Should therefore Field Marshal List have gained knowledge of this report - a point to be proved by the prosecution - he had to assume and could assume that these people were shot either in combat or after court martial proceedings.
11. In the case Crabovac - Field Marshal List had on 9 October 1941 criticized the fact that a peasant who had made statements about the sawing off of telegraph poles had been dismissed too soon. The record of the interrogation which was submitted, shows inequivocally that the peasant in question was examined only in a superficial manner. Had the interrogation been more thorough, clues as to the perpetrators would probably have been found.
When at a later date General Boehme ordered that in reprisal for acts of sabotage every fifth house should be burned down, this order constituted an action which was not carried out. For the further reports from General Boehme dated 14 and 20 October 1941 prove that fighting developed around Grabovac and that the troops were fired at from that village. That alone is the reason why Grabovac was destroyed in the course of the fighting and why a number of inhabitants were shot. Besides, the report from General Boehme of 14 October 1941 would not longer have come to the knowledge of Field Marshal List since he had relinquished his position on 15 October 1941.
12. There are yet a few other incidents to be discussed which took place in Greece.
They concern the measures taken by the 164th Infantry Division. The prosecution documents show that in September and even more so in October 1941 Greek partisans had attacked various occupation troops with fire arms.
In the course of the German countermeasures fighting repeatedly took place with the insurgents.
In the course of the first fight, which took place on 12 September 1941, four Greeks were shot. They were, however, shot in combat; in the same sentence mention is made of "wounded" Greeks.
In the course of the second encounter, on 29 September 1941, 27 Greeks were shot "some of them while escaping, others while attempting to offer resistance". They too were killed in combat which obviates any adverse interpretation.
On 17, 20, and 23 October 1941 troops of the 164th Infantry Division burned down some villages. According to the reports the men were shot, the women and children were resettled at other localities. These villages had served the partisans as strong-points and German troops had been fired at from them. When the villages were burnt, "hidden ammunition" exploded, according to the reports, in every house.
There is nothing in the reports to indicate that these actions originated from orders of superior command agencies, much less from orders of the Armed Forces Commander South East. It is true that Field Marshal List's order of 5 September 1941 was sent also to the Commander Solonike - Aegean. But it is by no means certain that he passed it on to the 164th Infantry Division. Against that speaks the fact that the order of 5 September 1941, as can be seen from the preamble and from the entire balance of its contents, was issued for the Serbian area exclusively. Above all I should like to draw attention to Paragraph 1 section 2.
"The Commander Serbia and Corps 65 are therefore to make all preparations immediately..."
If, therefore, in all of these cases the troop commanders in Greece took stringent measures, it cannot be said that their actions originated in the order of Field Marshal List. That can also be seen from the activity report of the 164th Division in which the Division itself states that at its order more energetic measures are being taken against these villages.
Summary Court Martial proceedings did take place. Emphasis ought to be placed on the fact that the population which had thanked the German troops for freeing it from the robber bands, actively supported the fight against the partisans and cheered "shouting loudly and gesticulating" when the judgment of the Summary Court Martial was explained. Now I have yet to deal with the treatment of the Jews during the time that Field Marshal List was in the Balkans.
The prosecution claims that they were arbitrarily arrested and systematically murdered, and that Field Marshal List knew all that and approved it.
What had been proved?
A report dated 5 July 1941 which has been submitted states that among other things three Jews were shot in connection with explosives discovered. In a report from the Commander Serbia to the Armed Forces Commander Southeast dated 17 September 1941 it says that "parts of the male Jewish population of Belgrade were taken in the transit camp near Belgrade".
According to a third report dated 26 September 1941 Jews were arrested at and around Smederowo. These reports dating from the time of Field Marshal List's tenure constitute the basis for the assertion of the prosecution that the Armed Forces in the Southeast were active against the Jews and that Field Marshal List approved of and ordered these measures. If according to the report of 5 July 1941, a number of communists and Jews were shot "in connection" with explosives which had been found, it must be assumed that they had participated in the preparation of acts of sabotage. The fact that Jews actually participated in acts of sabotage or in some cases instigated them is proved by the report of 27 July 1941. Even the report of 17 September 1941 which has been quoted by the prosecution mentions only that parts of the male Jewish population of Belgrade had been taken to the transit camp near Belgrade.
Presumably those parts of the Jewish population were concerned which either had participated in hostile actions directed against the occupation power or were suspected to have participated in such. This is most plainly shown by the report of 26 September 1941. In this report it is expressly mentioned that Jews were arrested. In other words not all Jews but only those who had instigated the insurrection.
Field Marshal List could not have received the report of 27 July 1941 if for no other reason than because at that time he was on leave. Whether or not he was informed of the other reports regarding the treatment of Jews has not been proven. But even if this should be the case, it would not warrant the conclusion that the Armed Forces persecuted the Jews at the order or with the approval of Field Marshal List. The Jewish question in the light of a racial problem was of no interest whatsoever for the Armed Forces in the Balkans. The Jews, as can be seen from numerous affidavits, were during Field Marshal List's tenure free to move as they pleased. No restrictions were imposed on them. On the contrary, various members of the staff of Field Marshal List were living with Jewish families, and Jewish business men were considered when the Army placed contracts. If at that time Jews happened to be arrested or if any measures were taken against them, this was not done for racial reasons but exclusively because they had participated in the insurrection or were sufficiently suspected of such participation.
To persecute the Jews in any manner would have been contrary to the basic principles of Field Marshal List. Much proof has been brought to show this. Also the letter from Rosenberg to Bormann and the other documents about the activities of the Special Detachment Rosenberg show in no manner that Field Marshal List took part in any anti--Jewish activities or ordered such.
In the first place it is not even certain whether or not Rosenberg's letter was written and sent off at all. It is quite possible that all we have is a draft which was never sent off just because it contained certain erroneous statements.
In this alleged letter Rosenberg tried to justify himself against attacks by the SD and/or the Reich Security Main Office. In order to settle this conflict, Rosenberg approached Bormann, the strong man of the party, and, abusing the name of Field Marshal List, he made assertions which had nothing in common with reality. For, at the time when Rosenberg could have written this alleged letter Field Marshal List did not hold command authority in Belgrade.
Therefore Rosenberg's colleagues could not have been operating in Belgrade in agreement with Field Marshal List. Also the other assertion that Field Marshal List would establish accord with the SD has been made up. No such discussions or agreements in which Field Marshal List took part ever occurred.
All that Field Marshal List did was that at the beginning of the Balkan campaigns he once received Lieutenant von Ingram, the man in charge of Special Detachment Rosenberg, who had come to report to him. But the only reason that he received Ingram was that in the Western campaign he had been decorated with the Knight's Cross. On that occasion Field Marshal List expressly requested him to carry out his tasks in an honorable manner.
This Special Detachment Rosenberg was a small group of a few soldiers (approximately 5 to 10) and not, as the prosecution would have it, some kind of specialized unit. This detachment had the assignment to search State-owned libraries, archives of church authorities. Free Mason Lodges, and Jewish associations for subervise material. How limited their powers were becomes evident from the fact that they could not carry out even confiscations. If the Commander Saloniki-Aegean reported on 29 July 1941 that the Special Detachment Rosenberg had started on the "campaign against the Jews", this can only be understood to mean that it started on its activities amongst the archives; and the fact that the same detachment was detailed to the Commander Southern Greece on 2 October 1941 meant that the detachment had concluded its work amongst the archives of Saloniki and started to do the same things in Athens. Had it been an activity directed against the Jews themselves, a change in their situation would have occurred. That however, was not the case. The connection between the "Kommando Rosenberg" and Wehrmacht agencies was of a purely economic and disciplinary nature and existed only to the extent that members of this "Kommando" had been drafted for military service. Military commands had not authority whatever to issue orders or directives with respect to the execution of the "Kommando's" assignment.
The "Sonderkommando (Special Kommando) Rosenberg" did not, accordingly, have the slightest connection with the persecutions of the Jews. Hence, all the adverse conclusions drawn by the prosecution with respect to Field Marshal List in this connection are incorrect.
This concludes my recital of the facts relating to Field Marshal List's activity on the Balkan peninsula inasfar as they have been at issue in this trial.
Your Honors!
I have already submitted to you that, on 15 Oct. Field Marshal List, having fallen seriously ill, finished his duties on the Balkan peninsula, was operated on 17 Oct. and had to undergo medical treatment for several months thereafter.
When, in the early months of 1942, he had fully recuperated, he did not return to the Southeastern Theater.
Whereas the fact that Field Marshal List received no decoration at the conclusion of the Balkan campaign and that, throughout his illness, Hitler never once inquired after his health, did indicate the existence of tensions, the fact that field Marshal List was not reassigned as Armed Forces Commander Southeast is the most telling evidence that Hitler was dissatisfied with his conduct of affairs. Field Marshal List's repeated objections to the measures demanded of him had caused Hitler not to give him any other assignment.
If Keitel on 24 April 1942 wrote in his appraisal of Field Marshal List that the latter had distinguished himself as Commander-in-Chief of the 12th Army and Armed Forces Commander Southeast and enjoyed the unbounded confidence of the Fuehrer, it must be understood that Keitel's judgment was intended to persuade Hitler in favor of Field Marshal List. This is also evident from a remark made by Keitel to Field Marshal List that he, Keitel, had to straighten out List's case just as he had to straighten out Hoeppner's case. General Hoeppner had fallen into disgrace with Hitler on account of his resistance and had been demoted from the rank of General to that of an enlisted man.
To carry out an offensive operation, a new army group command had to be established in the southern sector of the Eastern Front in the middle of 1942. General Halder, then Chief of the Army General Staff, suggested Field Marshal List as Commander-in-Chief of this army group. It was only after General Halder had repeatedly urged the appointment that Hitler decided to assign Field Marshal List to command this army group. He did so, as General Halder has stated, "reluctantly" and only because he needed Field Marshal List, an expert in mountain warfare, for this particularly difficult assignment.
On 7 July 1942, Field Marshal List took over elements of the von Bock Army Group as a new Army Group "A" in the southern sector of the Eastern front. His assignment was purely operational.
Just as Field Marshal List could have had no knowledge of the Commisar order during his Balkan assignment --
PRESIDING JUDGE CARTER: The copy I have here seems to be incomplete. That is as far as it goes. Very well, I have a copy now.
DR. LATERNSER: I shall start on page 186 at the top.
Just as Field Marshal List could have had no knowledge of the Commisar order during his Balkan assignment this order had not come to the Southeast - he did not learn about this order while on the Eastern Front. The Commissar order was issued more than a year prior to his appointment. As List's assumption of office as Chief Commander took place in the middle of an operation and the von Bock Army Group had only handed over the most urgent papers and only such files as pertained to the operations in hand, the new Army Group "A" had no records whatever to show that the commissar order had been transmitted to subordinate commands. Neither, did incoming reports received by Army Group "A" supply any indication that any importance whatsoever was attached to the commissar order. Hence Field Marshal List at that time had no occasion to institute any investigations. There was all the less reason for that since the Commander-in-Chief had to deal exclusively with operational matters in immensely vast areas and was not concerned with territorial tasks in the areas occupied by the armies.
The commanders of the rear army areas did not report to the Army Group on any incidents of this kind within their areas. Thus, Field Marshal List could not have obtained knowledge of the prosecution document on the shooting of Politruk Kalaba and Commissar Mahala. Hence no responsibility attaches to him for the enforcement of the commissar order in the east.
In the course of the operations, grave differences arose between Field Marshal List and Hitler. Hitler had ordered Field Marshal List to lead an attack with some of his forces across the Caucasus making for the Black Sea. As this attack would not have had the success desired by Hitler, but, on the other hand, would have been certain sure to have jeopardized the German attackers in the most irresponsible fashion. Field Marshal List opposed the execution of this order. Because of the latter's objections voiced orally, by telephone, and through the personal agency of General Jodl, Hitler finally dropped his original plan. On the following day, however, Field Marshal Keitel arrived and told List that he, List, no longer enjoyed Hitler's confidence. He was to resign his command of Army Group "A".
On 9 September 1942 Field Marshal List resigned the Command- inChief of Army Group "A" and on the following day returned by plane to Germany.
If the prosecution blames Field Marshal List for not having resigned as early as September 1941 after his remonstration against the OKW directives, dated 16 Sept. 41, had failed, the following ought to be said:
Conditions in the fall of 1942 were very different from those in September 1941. In 1942 the point at issue was an operational order on which Field Marshal List, being Commander-in-Chief of an Army Group was in a position to and even bound to comment. In this case he was able to put forward weighty military reasons against Hitler's order.
Apart from that, there is a fundamental difference, owing to the fact that, in the fall of 1942, Hitler requested Field Marshal List to relinquish his command. A resignation against Hitler's will would have been impossible for Field Marshal List even in the Fall of 1942 because of the ban on resignations.
After only 2 months in office, Field Marshal List relinquished the command over Army Group "A" in September 1942. Thus his military activity was finally terminated.
Although it was painful for him no longer to be able to serve his country, to which he had devoted his life's work, in the most difficult of all struggles, yet his inner antagonism to Hitler and National Socialism, which became more and more apparent, greatly helped in relieving his anguish.
From that time on, every contact with Hitler ceased. Field Marshal List never requested to be reassigned, nor did he address a message of devotion to Hitler on the occasion of the plot on the latter's life on 20 July 1944.
V.
Your Honors:
When, in your appraisal of the established facts of this case, you seek to determine the extent to which the prosecution's assertions have been substantiated, I would ask you always to bear in mind the fact that Field Marshal List was the predominantly operational leader of an entire theater of war comprising several countries.
Field Marshal List's position on the Balkan peninsula is comparable to that of a Head of State, and it would not occur to anybody to hold a Head of State criminally responsible for all the acts of his subjects. The position of the American General Clay affords another point of comparison. Let us for the sake of completeness assume that the Commander General of the American Zone in Austria were subordinate to General Clay and we have, approximately, the same relationship as that existing between Field Marshal List and the Commanding General for Serbia. You can see from these comparisons how untenable the position taken by the prosecution really is.