c) Document NOKW-2520 (Exh. 631) which was submitted subsequently by the prosecution - Situation report of 14 April 1944 - does also not prove anything against the voluntariness of the recruiting. The words "procured" (vermittelt) and "engaged" (verpflichtet) are, in the use of the German language, no opposites. No forced measure can be concluded, from their use.
The defense refers, on the other hand, to document NOKW-649. This is a situation report of the military commander Greece of 13 July 1944, which was therefore written long after General SPEIDEL's departure. This document mentions for the first time that "in future and for the first time" also forced, measures were to be applied. This proves that previously no forced measures were applied.
2) Suppression of strikes.
The right of the occupying power to suppress strikes results from the already quoted Article 52 of the Hague Convention on Land Warfare. As the IMT judgment recognizes the right to use forced labor, based on Article 52 this also includes, of course, the right to use force, within certain limits, and to suppress strikes which would have unfavorable effects on the occupying power.
The prosecution did not prove, for any case, that General SPEIDEL actually suppressed strikes with illegal means. In most cases nothing was done anyway.
The strike referred to in prosecution-exh. 418 mentions merely the arrest of 39 persons. It may be assumed as certain that the arrested had been taking part in the strike. Nothing proves that any further steps beyond the arrest were taken.
The incident mentioned in prosecution exhibit 437 took place on 9 March 1944? that is, at a time when General SPEIDEL was on sick leave in Germany. His responsibility is, therefore, excluded.
The following has to be mentioned, in this connection:
a) The prosecution attempted to hold General SPEIDEL responsible for those retaliatory measures which were carried out by his deputy during SPEIDEL's 54-day long absence when he was ill.
The prosecution has made an attempt to represent these measures of the deputy as following orders and instructions issued previously by General SPEIDEL, partly because of previous incidents, partly for the explicit purpose to give definite fixed directives to his deputy for the time of his own absence.
b) On principle, the following has to be stated in this connection: First: that a "deputy" (Vertreter) is alone responsible for the measures taken by him, Second:
that the basis of his decisions were the orders issued by his superiors which were generally to be obeyed, and Third:
that General SPEIDEL did not give any directives or instructions, to his deputy, before his departure, as there was no reason for it. The deputy in his capacity as officer of the military government area headquarter, was just as well informed about all matters as the military commander himself.
c) The prosecution attempted, in this connection to regard, as basis for the retaliatory measures of the deputy, a so-called "Strike Decree" of the military commander, dated 1943, This "Strike Decree" was not submitted in evidence. Its contents is not know. It is also unknown whether or not it concerned "retaliatory measures"; however, this must be doubted. The following fact makes it appear improbable: Immediately after his return in March 1944, General SPEIDEL released several hundred Greek workers who had been arrested because of participation in that strike, and then tried by a court-martial only a few of the instigators. This measure proves conclusively that the Strike Decree called for punishment by Court proceedings.
d) Finally; even if we assume that it was proven that the so-called Strike Decree called for the measures applied in that case, this decree would not have been any longer in force in March 1944. Because the socalled "LOEHR order" of 22 December 1943 which repealed all former socalled retaliatory orders, had already been in force in the course of January, and that is before the time, in spring 1944 when the deputy of the military commander applied the retaliatory measures.
Only this LOEHR order could have been the basis of the decisions of the deputy of the military commander. Thus any attempt to refer to previously issued orders or directives is without success.
c) As final evidence against the assertions by the prosecution must be regarded the very obvious fact that the only two large-scale retaliatory measures in the zone of the military commander were applied exactly at the time of General SPEIDEL's absence!
This fact proves the opposite of the facts charged by the prosecution. It proves that, after the two acts of sabotage of January and June 1943, General SPEIDEL himself did not make any use of the opportunities presented to him to order retaliatory measures! He has also in this regard shown the greatest reserve, because he personally disapproved of these measures, as he stated himself under direct examination. The decisions and measures of the deputy are not incriminating but rather redeeming in regard to SPEIDEL.
3) Deportation of Jews.
In connection with this point the prosecution in their Opening Statement of 15 July 1947 states that SPEIDEL's police troops had deported Jews from Crete, Corfu, Rhodes, and the other islands.
This statement shows that the deportation of Jews was definitely a police measure which came within the exclusive competency of the Higher SS and police leader, and was carried out in accordance with the instructions of the Reichsfuehrer SS. The judgment of the International Military Tribunal stated: "The evacuation of Jews from the occupied territories was carried out according to the instructions of the SS with the help of SSpolice units."
Although Crete was Greek territory, it was directly under the command of Army Group E. The military commander of Greece was only entitled to give directives regarding basic questions of administration. (For instance, currency questions and such). As to the operations connected with the Jews, the military commander of Greece was not even informed about them.
Rhodes was not even Greek territory, but as is known belonged to the Italian Dodekaneses. The commander of Rhodes was subordinated to the Army Group E in every respect. Besides, according to the documents submitted by the prosecution, the deportation of Jews from Rhodes took place at a time when General SPEIDEL had long ago left Greece.
The measures carried out in Corfu did not take place at the order or with the authorization of the military commander of Greece, neither was the latter informed of these measures by way of orders or reports. All orders went from Army Group E to the offices directly or indirectly concerned. As the distribution shows, the military commander of Greece was not even notified by way of information.
This leaves only those measures for discussion which were carried out in Athens itself. When General SPEIDEL heard about the intended evacuation of Jews from Athens, he attempted to have this project cancelled, though he had no authorization, and was not compelled by any official duty to do so. The attempt failed. When, shortly after this, General SPEIDEL heard that Jewish property was being looted, he immediately contacted the Special Commissioner of the Reich, in order to have measures instituted which would preserve this property for the Jews. - a step which did not come within his competency and was not a part of his official duties. In agreement with the political representative of the Reich, the Jewish property was confiscated and placed in the hands of the Greek Government which was to act as trustee. The purpose of this measure was to preserve the property of the Jews as far as possible. That is to say, its purpose was not to destroy and annihilate but to spare and safeguard as far as possible.
The humane attitude which General SPEIDEL adopted in this matter is not surprising if one peruses the affidavit WALDECK; this affidavit shows clearly that even in previous cases SPEIDEL had taken active and positive steps on behalf of the Jews.
4) Confinement in Concentration Camps.
As is shown by the prosecution documents, there were two hostage camps, one in Saloniki and one at Larissa. General SPEIDEL did not know of them. On the other hand it must be stated that they were situated in a territory where the commander of Saloniki-Aegaeis was in charge of the combatting of partisans, and thus they were probably subordinated to him in his capacity of tactical Commander.
General SPEIDEL did not institute nor maintain hostage camps. On the contrary as is shown by Document NOKW-692 (Exhibit 422) he even tried to prevent the institution of such camps.
The camp at Chaidari was a police camp and was subordinated to the competency of the Higher SS and Police Leader.
This circumstance makes it understandable that General SPEIDEL had no detailed knowledge of this camp. The fact that these matters did not come within the Military Commander's competency, as also the fact that the police offices carefully veiled their measures and institutions, brought it about that General SPEIDEL heard nothing of the conditions which are alleged to have existed in the camp of Chaidari. Even the Field Commander, General EISENBACH, who was competent and responsible for this region, only heard about this camp in the course of a conversation after he had been in Athens for a long time.
II.
A survey of my expositions up to now will provide a clear answer to the question whether the assertion of the prosecution quoted at the start is correct or not, namely, the assertion that the defendants in this trial "instituted and carried out a well-planned program of terror and annihilation." The answer in the negative which is perfectly justified even now will be further supported by some additional remarks.
General SPEIDEL pardoned and released many hundreds of Greeks who had been sentenced by German courts to terms of imprisonment, some of which were of considerable duration.
Furthermore, after the retreat of the Italians, General SPEIDEL immediately released far more than a thousand Greeks who had been confined in the prisons of Athens.
In addition, General SPEIDEL energetically supported the aid for Greece project of the International Red Cross; the purpose of this project was to help the Greek population that had always been dependent upon the import of foodstuffs over the difficult time of war.
In particular, I refer to the statement of the Swedish President of the Senate, Sandstroem, who was at that time President of the International Red Cross in Greece. Sandstroem knew the events in Greece from his own personal experience, and for this reason special importance should be attached to the statement which he makes in his affidavit: "With regard to the connections between the Administrative Committee of the Aid for Greece and Herr SPEIDEL in his capacity of Military Commander, I can say the following: As the time passed, we contacted more and more the military authorities, and if we had business with General SPEIDEL he not only met us in every way, but his intention was always to adhere to international agreements; and he tried to help us by every means in his power."
The British air attack on the Piraeus in January 1944 resulted in a destruction which was certainly not necessary from a military point of view, and on account of which thousands of Greek families lost their homes and were left with nothing in the world. It was General SPEIDEL who, in cooperation with other German offices, immediately instituted aid measures for the victims of the air raid; he saw to it that field kitchens of the Wehrmacht were set up and made considerable amounts of foodstuffs available for the thousands of people.
The former Greek President of the Cabinet Council, Logothetopoulos, who was no more the chief of a puppet government than, for instance, the Bavarian President of the Cabinet Council today, describes General SPEIDEL as a sensible and mild soldier, with whom it was easy to get on and who, having enjoyed a classical education, had understanding for the soul of the Greek people.
The number of these examples could be considerably increased. If any further proof is needed for the irreproachable and humane attitude of General SPEIDEL toward the Greek population, I wish to refer to the reasons which led to General SPEIDEL's recall, his mild and yielding attitude with regard to the Greek population, an attitude which was frequently opposed to the measures of the tactical command and which was the decisive reason for his recall in May 1944.
All these facts are not very suitable for confirming the assertions of the prosecution regarding a program of murder and terror. And nothing is more foolish than the assertion of the prosecution that my client had committed murders and crimes in order to support the racial and economic policy of the Third Reich.
General SPEIDEL's negative attitude towards National Socialism has been unmistakably established in his direct examination.
From the number of affidavits which I have submitted to this point I here mention the affidavit of the American Colonel, Truman-Smith, who by reason of his personal contact with General SPEIDEL had occasion to gain intimate knowledge of his anti-National Socialist attitude. The prosecution has thought that they could refute General SPEIDEL's own statements in connection with this point by submitting the opinion of 22 February 1939. It has previously been shown that the more or less involved phrases describing an officer's attitude toward National Socialism which appeared in the official opinion, were just a farce and only complied with a regulation. In document NOKW-2829, Prosecution Exhibit 666 - submitted as a supplement - the prosecution themselves have provided the proof for this statement.
As late as 1943 an opinion certified that Major Kuhn in the General Staff was a convinced National Socialist. But at this time Major Kuhn had already made a bomb attempt on Hitler's life. That was what the National-Socialist's conviction of Major Kuhn really looked like. This fact clearly shows the value of Exhibit 648 submitted by the prosecution. It is certainly no refutation of General Speidel's own declaration.
As far as the short time at my disposal permits, Your Honors, I have tried to give you the most important viewpoints of my client's defense. Several things might still be said, but I know that you are acquainted with the entire material of the trial, the presentation of the case-in-chief and all the exhibits submitted in evidence on behalf of my client.
If I tried, in particular, to clear up the official relations between my client and the high-SS and Police Leader of Greece, it was my aim to point a way out of that maze of confused Commands which existed in the Greek territory. It must be definitely admitted that it is very difficult for an outsider to gain a clear insight into the entire State and Party apparatus of the Third Reich. The fact that these ambiguities, the overlapping of competencies, the impossibility of having matters cleared up by a superior agency, were parts of a system of the supreme State authorities, is beyond any doubt for anybody who has busied himself with the conditions under the last German regime. The subordinate was meant to find his own way of this confusion. General Speidel had to cope with the institution of the higher-SS and police leader, i.e., the personal representative of Himmler. General Speidel has explained in detail and I may say in a convincing manner, how he interpreted the directives defining authority of this official, and how he drew a clear borderline between their two competencies. Now the prosecution has asserted in the last part of their presentation of their case-in-chief that the directives defining the authority of the higher SS- and police leader were ambiguous, they did not mean what they said -First, I cannot see why official directives should be ambiguous.
Is it perhaps because General Speidel showed up the legal misconception on which the indictment has been built up by his explanation of the manner in which he interpreted these official directives in 1943, in accordance with the experience of his thirty years of military activities?
If, however, the official directives are ambiguous and do not mean what they say, then the prosecution must admit that at least two interpretations are possible, without one or the other being necessarily and intentionally wrong.
Is it thus possible to base a verdict of "guilty" on the fact that, according to the assertion of the prosecution, General Speidel's interpretation of the directives defining the authority of the higher SS- and Police Leader was wrong? I refer to three passages of the judgment in the case of the United States of America versus Field Marshal Milch: I quote:
"Unless the court which hears the proof is convinced of guilt to the point of moral certainty the presumption of innocence must continue to protect the accused. If the facts as drawn from the evidence are equally consistent with guilt and innocence, they must be resolved on the side of innocence.
Under American law neither life nor liberty is to be lightly taken away, and, unless at the conclusion of the proof there is an abiding conviction of guilt in the mind of the court which sits in judgment the accused may not be damnified." End of quote.
And at another point: I quote further:
"......before we can find the defendant guilty we must conclude that every hypothesis resulting from the circumstances is consistent with guilt and inconsistent with innocence. One can easily reach the hypothesis of guilt from the documents and testimony by that hypothesis in many of its phases is also consistent with innocence."
End of quote.
And finally I quote: "Remarks such as "the defendant must have known", or "to the best of knowledge he knew", and other similar inconclusive conjectures frequently used in this part of the case are not the kind of links which are imperatively needed to make up a chain strong enough to sustain the weight of a conviction".
If I would add anything to the impressive precision of these sentences I would only detract from their clarity. Your Honors, you will now evaluate the presentation of evidence by both the prosecution and the defense in the case of General Speidel according to the principles of an administration of justice based on a high sense of moral responsibility.
Hitherto, in the history of civilized states and powers, war as such came to an end at the moment when the defeated party offered to surrender, i.e., when they signed an "armistice" and laid down their arms.
This military conclusion of the war was followed by its political liquidation. Never before, however, in the history of civilized powers has it been the consequence of a war that the victor should sit in judgment over the vanquished.
Where is this consequence going to lead, if years after the actual conclusion of a war the victor considers himself entitled to sit in judgment over the vanquished and to pronounce verdicts? The result of this fact is a justified fear that the principles of justice will be obscured by the instinct of revenge, that might will be stronger than right!
Not the court of the victors, but the incorruptible historical recognition of future generations will pronounce judgment as to guilt or fate, as to right or wrong.
History will not revise your judgment in the case of General SPEIDEL, if this, your judgment, reads:
Not guilty on all counts!
DR. WEISSGERBER: Therewith, I have concluded my final plea. Your Honors, because of the short time available to me I have not been able to include into my final plea of today the rebuttal to the statements contained in the final statement of the prosecution. I hope that I will have an opportunity to supplement my statement.
THE PRESIDENT: The court has provided for a period of two hours which can be divided with all counsel in conclusion of its argument to answer statement propounded by prosecution. The tribunal will be in recess until 9:00 tomorrow morning.
(The Tribunal adjourned until 0900 hours, 6 February 1948.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Wilhelm List, et al, defendants, sitting at Nuernberg, Germany, on 6 February 1948, 0900, Judge Burke, presiding.
THE MARSHAL: All persons in the Courtroom will please find their seats. The Honorable, the Judges of Military Tribunal V. Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, you will ascertain as to whether or not all defendants are present in the Courtroom.
THE MARSHAL: May it please Your Honors, all the defendants are present in the Court.
THE PRESIDENT: Judge Burke will preside at this day's session.
DR. FRITSCH (Counsel for defendant Rendulic): If it please the Tribunal, on behalf of our spokesman, before I start reasing my final plea, I would like to make a request.
According to the rules laid down for this Tribunal, the defense will have an opportunity to reply to the final plea of the Prosecution. Up until this time, we have not yet received the German text of their final plea and we would like to ask the Prosecution to please let us have it during this morning, if possible.
MR. FULKERSON: I will find out what the status is of that translation and if it is possible to get it to them I will this morning.
THE PRESIDENT: If you will, please. I think it should be gotten out immediately. It should be in their hands. It is a matter of just professional courtesy which I know you are endeavoring to do and show, but they cannot very well reply to it unless they know what was in it, unless they happened to be here that day.
MR. FULKERSON: Yes, sir.
THE PRESIDENT: You may proceed.
DR. FRITSCH: We are very grateful. Your Honor, may it please the Tribunal - two and a half years after the gigantic struggle of nations soldiers were brought to trial before this High Tribunal by the victorious powers, to answer for alleged war crimes and crimes against humanity.
In the last centuries the principle of personal liability was relinquished and it was attempted to create a written international law, with the state as such, and not the individual, bearing the responsibility. It is needless to say that a particularly big responsibility for the judge appointed by the victorious powers is the result of this changed approach.
In the introduction it seems important to refer to two crucial points which are striking in this collective charge, all the more so, since they deviate from the usual experience: Not one of the defendants, although they were all closely connected by their superior, subordinate or equal positions, incriminated one another.
Wherever possible, each of the defendants assumed the responsibility: in one case even under disregard of possible self-incrimination in the eyes of the Prosecution. The explanation lies in the knowledge of having done no wrong and in inbred soldierly decency.
If this trial represent an isolated case for this reason alone, there is another factor which makes it most outstanding. The verdict in this case will be noted by soldiers the world over. This verdict will decide: the discipline of the armies, the justification of superior orders, the self-initiated action of a soldier in difficult situations, the commander's case of his troop. An army, which deviates from these principles will, however, not be able to fulfill the tasks confronting it in the natural course of events. The public rarely approved the verdict of a court unanimously. For a part of the people are completely influenced by the demands and slogans of the present, especially during transition periods such as we are experiencing now. The other, more valuable part of the people will not permit itself to be guided by such slogans, it will recognize their merely transient nature and search for the objective and permanent values.
The above-mentioned principles of the professional army are permanent values.
There may be people whose feelings I am already hurting by discussing war as such and the possibility of future war. Here we cannot consider utopians or propagandist dreamers, only pure reality and facts which are part of the natural course of events. War is a natural evil phenomenon! But exactly like a sensible doctor approaches an illness, we must attempt to treat this illness of the world which flares up from time to time. By helping, curing, preventing.
Humanity has applied the most varied methods in an attempt to influence the origin and the events of war as such. The judgment of the fictors over the vanquished leaders has now been recommended as the most modern means. I cannot believe that this method will achieve the warning effect at which it aims. The commander of an army or the responsible leader in a future war will not draw the inference from the fact that he will later be tried by the victors in case of defeat, which this procedure (also preventive in purpose) expects to achieve, namely that he should aim especially at humanizing the war. Particularly technical science equips man fur future wars. He will apply it more ruthlessly and sternly in order to escape the judgment by the victors. The result will be an intensification and not a humanization of the conditions of war.
If such a court is appointed, it must be guided by the predominant factor, namely justice and during such proceedings the sentence in dubio pro reo must be applied to the utmost, more so than in any other criminal trial. In this case there is the additional factor, that inasmuch as the court is to assume the role of the legislator in International Law, the defendants, as objects of experiments, are under a disadvantage; then there is the further disadvantage that basic regulations might be ignored for the first time. I am referring to the regulation in force in all civilized states, providing that no punishment may be inflicted unless the law was enacted before the perpetration of the crime. This question will later have to be dealt with in detail.
First of all, the competence of this High Tribunal will have to be discussed.
It was my duty to question the competence already in my opening speech and during the argumentation I supported my opinion on the basis of appropriate laws.
If Your Honors please, I would like to add the following: since I have only two hours at my disposal for my final plea, I feel obliged to ask permission of the Tribunal only to present parts, and draw the balance of the plea to the judicial notice of the Tribunal. I have endeavored to decrease the contents of my final plea to a minimum; but, in view of the fact that apart from the Southeast and Balkans, I have also to deal with the Norwegian problem, it has become so extensive I will not be able to read the whole plea in two hours. In view of this fact, I just refer to the following pages up to 31 of the German and English text of the final plea.
In these pages I have dealt especially with the competence of the Tribunal and have also answered in detail the legal brief of the Prosecution on this question.
After legal investigations made by me, I have reached the result that even in consideration of verdicts by the Supreme Federal Court of the United States of America, the question of the competence of this Tribunal has to be denied. I have furthermore dealt in the pages I am not going to read with the question of the applicability of the Control Council Law and in this connection with the frequently quoted paragraph 47 of the German Penal Code.
I shall now start reading at page 31, that is page 31 of both the German and English text of this plea.
"The desertion of Italy on 8 September 1943 caused a dangerous crisis to the lives of the German troops on the Balkans. In the coastal area there were about 15 Italian divisions with app. 170,000 men facing the 2nd Armored Army. The danger of the position was increased by the fact that, after the occupation of North-Africa and Sicily by the Allies and after gaining a foothold on the Italian peninsula in the beginning of September, a landing of the enemy on the Balkans had to be reckoned with.
Proof for this is also given by Rebuttal-Exhibit 655, photostat, where the entry in the journal of the XXI Army Corps under 10 September reads as follows: 1815 hours inform Ia of the army that according to messages from radio station Beromuenster, a large convoy is on the way in the direction of the Ionean Sea. The possibility of an impending landing of the Allies on the Albanian coast is to be reckoned with. The divisions will be mobilized accordingly.
As became known after the war, General Marshall in 1943 succeeded only with great difficulty in dissuading Winston Churchill from planning a landing in the Balkans.
Protected by mountain ridges easily to be defended it would have been easy for the strong Italian forces to form a large bridgehead under cover of which a landing could have been effected unchecked. This would have had a catastrophic effect, not only on the position in the Balkans but also on the Eastern front which was deep in Russia, and the right flank of which was protected by the forces in the Balkans. It was therefore an absolute military necessity to neutralize the Italian forces facing the 2nd Armored Army as quickly as possible. The masses of the Italian forces were on the soil of Allied Croatia, part of them were in Albania. Only far inferior forces were available to combat the Italians; in the last resort only six weak battalions were available, as the motor vehicles on hand were not sufficient to motorize a larger force. These battalions were followed by the divisions belonging to them, who were partly or wholly marching on foot for weeks as far as they could be released from fighting the partisans.
The Italians had to be regarded as enemies. It was obvious that Italy, which left the alliance, could only side with the enemy, as did happen shortly afterwards. Then, in the beginning, it was not known what orders the Italian forces had received or would receive in the case of Italy's withdrawal.
Only on 9 September 1943 did it become known through telegraph messages that Badoglio had ordered the forces on the Balkans to offer resistance and to continue fighting on the side of the Allies.
Up to that date it was unknown what order the Italians had received, as is stated by the defendant in direct examination and in cross examination. If, in its rebuttal, the prosecution seeks to prove by Exhibit 655 that these statements were incorrect, then this eivdence is inconclusive since this is based on the entry dated 9 September 1943 in the journal of the XXI Army Corps, which tallies with the above mentioned document Rendulic No. 52, Exhibit 57 submitted by myself.
The defendant never maintained that this message was unknown to him, on the contrary, he explained that his steps were due partly to the resistance to be expected from the Italians.
I have proved that, on 10 September 1943, the commander of the 2nd Armored Army concluded legally binding capitulation, without being subjected to any duress, with the competent Italian commander-inchief.
The capitulation was concluded with the commander-in-chief of the 9th Italian Army and not with the commander-in-chief of the Italian army group, because apart from the 9th Army there was also the 2nd Italian Army subordinated to the army group and in this latter army, the 2nd Armored Army was not interested. All Italian forces in the area of the German 2nd Armored Army were subordinated to the 9th Italian army, only later on there was a discrepancy about the subordination of the XVIII Army Corps at Zara, with which a separate capitulation was subsequently concluded without difficulty, as mentioned. The elimination of the commander-in-chief of the Italian army group is of no importance for the concluded capitulation, as there was no compelling reason to conduct the negotiations with him. From the point of view of the 2nd Armored Army the commander-in-chief of the 9th Italian Army was the only competent and legitimate person for concluding the capitulation in accordance with the rules of warfare.
The German commander-inchief was all the more inclined to decide on this course since the commander-in-chief of the Italian army group was described by German circles in the Balkans as being a two-faced person inclined to play an underhand game. It was also known of him that he permitted the secret supply of Italian arms to the partisans.
There can be no question of the Italian commander-in-chief of the 9th Army who signed the capitulation, having been subjected to any coercion, as is alleged in the rebuttal of the prosecution. Neither can such a coercion be inferred from the fact that the commander-in-chief of the Italian army group was taken prisoner, For before the capitulation, as early as 9 September, i.e. before German forces entered the Italian area, the commander of the Italian army group, as well as the one of the 9th Italian Army, had made the most important concessions. This is apparent from the photostat of the rebuttal document Exhibit 655, where the entry in the journal of the 2nd Armored Army under 10 September reads as follows:
"The negotiations conducted by the German liaison staff with the Italian army group Est and the Italian headquarters of the 9th Army on 9 September resulted in the Italian concession to surrender heavy weapons and to evacuate the ports." Heavy arms are understood as including heavy machine guns, grenade-throwers, artillery and tanks.
COURT NO. V, CASE NO. VII.
Under these circumstances the official capitulation of the following day can hardly have been concluded under duress. The rebuttal exhibit 655, which was to prove the incorrectness of the defendant's statement, namely that the capitulation was concluded without duress, therefore proves the contrary.
The prosecution also wishes to connect the order to cut the cable Durazzo-Rome with the negotiations of capitulation. In the rebuttal exhibit 655 is the following entry in the journal of the XXI army corps under the 8th of September, "2120 hours Headquarters of 2nd Armored Army gives the order by telephone: operation 'Axis' to be carried out. The divisions are mobilized and receive order to prepare immediately and to report readiness for marching off.
"2210 hours Headquarters 2nd Armored Army (commander of signal corps) orders by telephone to sever the cable Durazzo-Rome immediately."
When the codeword "Axis" was given late in the evening of 8 September, the German forces were in the South of Serbia and still 400 km away from Durazzo. Since a fight with the Italians had to be reckened with, it was natural that the commander of the signal corps gave the order to sever the enemy's lines of communication. The prerequisite for this was that the area of Durazzo should be reached first. In the evening of 8 September probably nobody thought of negotiations of capitulation; and by careful thought and by realizing the position known to them, the prosecution should have become aware of the fact that its allegations are untenable.
It is inexplicable why the Prosecution attaches any importance to Badoglio's treaty with the Allies, dated 3 and 8 September 1943, as well as to Badoglio's order to offer resistance.
These facts were completely irrelevant for the German commander-in-chief. Also, they could not affect the validity of the capitulation in any way. It remains valid, regardless of whether the commander-in-chief who concludes the treaty signs the capitulation by order, without order or even against the order of his government. This is shown with irrefutable clarity in article 248 of the Rules of Land Warfare.
A capitulation is also binding for all forces subordinated to the commander-in-chief who concludes the treaty.
The essential contents of the capitulation stated that the Italian Forces shall surrender with their entire equipment and furthermore bind themselves neither to damage any material, nor to let arms, ammunition or vehicles fall into the hands of the partisans.
The conditions of the capitulation also included sanctions threatening with punishment in the form of shooting, especially for actions in contravention of the condition not to let any weapons fall into the hands of the partisans. I have proven that the threat of sanctions in capitulations is in keeping with the customs of war. However, I shall like to emphasize here and now that I have also proven that, with one single exception (Bergamo Division), the mere threat of sanctions completely achieved the intended results, and that the threats were never carried out, not even in the case mentioned. This is shown by the entire documentary evidence, from the actions against the Bergamo Division described later on and, finally from Varnbuehler's statements.
If it please the Tribunal, I shall now skip the next few paragraphs where I describe the attitude of the Italians and their conduct and the fact that the capitulation was legally valid and I shall continue with the last paragraph on page 38.