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.
On 1 September the first Fuehrer order on the treatment of Italians was received. In accordance with this order, officers of detachments who still offered resistance after the ultimatum, were to be shot as francs-tireurs. This order, as can be seen from the document, was passed on without the defendant having anything to do with it. Although the defendant would have raised no objection to this order being passed on, if he had known about it beforehand, nevertheless, I would draw your attention to this fact in order to show that important orders were automatically passed on by the staff. On 13 September the second Fuehrer order was received, which stated that officers of Italian units who allowed their weapons to fall into the hands of insurgents or who made common cause with insurgents in any way were to be shot according to martial law.
The defendant could not find anything illegal in these orders, since the Italians mentioned in the Fuehrer orders could not be considered as regular soldiers and, moreover, came under the panal regulations for treason.
The contention of the Prosecution in its Opening Statement page 67, namely that the Italians who opened hostilities were regular soldiers, is absolutely incorrect. Also the fact that they met the requirements of Article 1 of the Hague Rules (uniforms, leadership, etc.) cannot alter the circumstances. The Prosecution overlooks the fact that the competent Italian commander-in-chief of the 9th Army in Tirana signed a legally valid capitulation binding for all troops within the area of the 2nd Panzer Army with the exception of the XVIII Corps in Zarna on 10 September 1943.
A separate capitulation was signed with the XVIII corps which, however, did not put up any resistance. The whole of the Italian troops were informed about the facts and contents of this capitulation agreement by their commander-in-chief and in addition by the German troops.
A treaty between Badoglio and the Allies and Badoglio's orders to the Italian troops in the Balkans did not have the slightest significance for the German commander-in-chief. On the basis of the terms of capitulation which the Italians, accepted without being subjected to any compulsion, they were prisoners of the German Wehrmacht as from 10 September 1943 and had to surrender their arms and also to take special care that no arms fell into the hands of the partisans. For this reason every kind of combat and resistance against the German Wehrmacht was illegal and carried all its legal consequences.
The Italians who took up arms against the German Wehrmacht and made common cause with the partisans after the capitulation was concluded, thereby were guilty of war treason and could only conduct the war against the German Wehrmacht as private persons but not as proper soldiers.
They thereby placed themselves outside the military law, and in the event of their being captured, they could never be accorded the status of prisoners of war; accordingly they could only be regarded as armed insurgents. Every Italian who supplied the partisans with arms, likewise violated the terms of the surrender and committed war treason. According to the German Military Code, (article 6) both offences carry the death penalty, as is also laid down in the Rules of Land Warfare Articles 205 and 214.
Furthermore the ordinances regarding war treason in an area under military control apply to persons of all classes, without regard to their nationality, or their military or civilian status; this is also expressed in the Rules of Land Warfare Article 205 b, last paragraph. Therefore, from a legal point of view, both Fuehrer orders were correct.
Later on both these teletyped orders appeared once again in the written O.K.W. order dated 15 September 1943. I again wish to emphasize that later, when proceedings were taken against Italians who acted in a criminal manner, this was effected exclusively by reason of these Fuehrer orders and never as a result of the sanction of the capitulation, the contents of which were entirely different. Action by the German troops against the Italians on the basis of these sanctions would in any case have been impossible, because these sanctions were never made known to the German troops as an order which they might have to execute.
In the meantime, the 2nd Panzer Army issued the order of 12 September 1943 which is likewise included in Exhibit 327 already mentioned before, namely, in Document Book XIII, English page 56, German page 43. This order was misunderstood by the Prosecution to such an extent that in their statement they went so far as to accuse the defendant of having issued a reprisal order against the Italians on his own initiative. Count 3, paragraph 12 i of the indictment may also be based on this order.
The order which has been mentioned was given with no other intention than to inform the Italian troops located in Northern Dalmatia - as it was not quite clear under whose command they were - of the terms and sanctions of the capitulation of Tirana, and to take measures for marching the Italians to the railroad.
The cause of the misunderstanding must undoubtedly be the translation of the last sentence in the second paragraph, which distorts the meaning. The correct translation of this sentence reads: "The commanding generals of these corps are to be given instructions, the meaning of which is indicated by the following". In the original version this reads "The commanding general of this corps", in this instance one commanding general is mentioned in the singular, and one might gain the impression that here we are concerned with an order to the commanding general of the German XV Corps to carry out regulations contained in paragraph 1-6. Actually, it is apparent from the German original and the sentence which was later translated correctly, that paragraphs 1-6 deal with directives, the purpose of which was to be passed on to the Italian VI and XVIII Corps as instructions. In substance, paragraph 1 briefly contains the most important terms of the capitulation of Tirana. The threat contained in this paragraph refers to the Fuehrer order of 11 September. Paragraphs 2 and 3 contain instructions for the subordination of the Italians and for marching them to the railroad.
In paragraph 4 the Italians are informed of the terms of the surrender of Tirana.
Paragraph 5 is an instruction to the Italian Corps to inform their divisions, down to and including their companies, of this order. Paragraph 6 stipulates that such Division is to "retain for the present" a truck column of 40 tons (for supplies). That is this case only Italian Divisions are meant becomes apparent from the fact that the German Division had a far greater tonnage at their disposal and that they had this available to them permanently right from the beginning.
This order is therefore anything rather than an order for reprisals. In spite of the explanation given by the defendant under direct examination and although the order -- according to its correct translation -- can never be taken as reprisal order against the Italians, and furthermore, although the Prosecution admitted the incorrection of the translation during the cross examination, the Prosecution showed particular interest in the statement by the defendant and had it repeated, namely that the defendant had ordered these sanctions in the capitulation on his own initiative and that they had nothing to do with the Fuehrer order. I would therefore like to emphasize once more that according to the customs of war the defendant was fully justified in establishing the sanctions, that the establishment of sanctions had nothing to do with a so-called reprisal order and finally that the sanctions were never issued to any German troops as an order, which they were to execute and that also they never were put into effect. The sanctions had the same effect as the punitive expeditions against Italian cities by the Allied Air Force which were threatened as sanctions in the capitulation agreed on between Badoglio and the Allies and which -- to my knowledge -- were also never carried out.
If it please the Tribunal, I recommend the following pages to the particular attention of the Tribunal. These deal with the matter of Roncaglio and I describe the development of matters there and the absolute military necessity which led to the order of the 2nd Panzer Army with regard to Roncaglio's person.
Particularly, I would like to point to the war diary of the 21st Corps which contains entry from the 1st of September. General Roncaglio does not comply with the regulations ordered by the 9th Corps.
I shall continue on page 37:
The contention that the defendant favored extensive leniency is proved further by the treatment the officers of the Bergamo Division received.
This division, together with strong groups of partisans, had managed to resist the German troops near Split until the last days of September.
The division acted not only in violation of the conditions laid down in the capitulation of Tirana, out also infringed a local capitulation agreement which had already been concluded, and which is mentioned on 11 September in the journal of the 2nd Tank Army: "after a dive bombing attack on Split the Italian troops in the town capitulated. The fighting unit pushing through to Split met with strong communist bands, with whom it is still engaged in battle."
It is quite clear that the defendant had no part in the order of the 2nd Panzer Army which was issued in this connection on 17 September as he was not with his army from 16 to 20 September. Similarly, the order issued on 12 September 1943 by the XV Corps never came to his knowledge, as an order issued by an Army Corps to one of its subordinate divisions was never submitted to him on principle, except in quite unusual cases when a note to this effect was added to the order.
I skip the next paragraph.
Split was reached on 27 September 1943 after bitter fighting involving heavy losses, and 300 officers and 9,000 men were captured there. Now if the prosecution simply states in count 3 paragraph 12 k of the indictment that these 300 officers were shot. This statement is all the more unintelligible as the prosecution documents themselves prove the contrary. Neither does the translation error in the first paragraph of the daily report of the XV Corps, dated 28 September, exhibit 332, where the German original "will be shot" was wrongly translated by "were shot", justify this erroneous statement if this document is considered in connection with the other documents.
On this occasion I would point out the following: it has happened three times that I have quoted rebuttal exhibit 655, not only in order to refute the contentions brought in the rebuttal but also to support my argumentation in other respects. This document contains, apart from other matters, a small part of the War Diary of the 2nd Panzer Army. From this I infer that this journal is available but that it has not been given to the Defense although, at the time, the Defense particularly requested this journal. It becomes apparent from my quotations, which I have taken from the entries covering only three days, how decisively important this journal is for the clarification of the legal facts and for the conduct of the defense. By not having access to this War Diary, containing the most valuable evidence, the Defense of General RENDULIC has suffered a set-back the far-reaching extent of which it is not possible to estimate. Unfortunately this occurrence also permits certain conclusions to be drawn as regards the methods applied in selecting the documents which have been made available to the Defense, as a result of the Tribunal's decision.
I drew attention to this in the second half of the morning session on 22 January 1948.
I now return to the situation near Split.
A battalion of the 7th SS Division, which at the beginning had been isolated near Split and whose situation had become desperate, was soon reinforced by other sections of the same Division and also by sections of a motorized regiment. This regiment met on the march with the opposition of Italian troops in the area of Cattaro.
This procedure of the prosecution is characteristic of many of its charges. It prefers these charges and makes statements for which it has no proof and indeed cannot have any proof. As by its very nature the defense must aim at eliminating these imputations and statements too, it is finally left with the task of proving innocence even in cases when no conclusive evidence of guilt has been adduced. It is my opinion that this transfer of the burden of evidence from the prosecution to the defense may be a very convenient procedure but that it is entirely unjustified and absolutely contrary to the regulations of this trial.
The XV Army Corps informed the Army of its intention to shoot the officers in accordance with the Fuehrer orders and noted this intention in its diary in the second paragraph of the entry for 27 September. But in the third paragraph of the entry a change becomes apparent regarding this intention, namely it is to be ascertained which officers are guilty. This investigation would not have been necessary if it had still been intended to shoot all the officers. This fundamental change was due to an instruction issued by the defendant to the commanding general of the XV Corps, to the effect that there could be no question of shooting all the officers, but that steps should be taken, in accordance with the Fuehrer order, only against those who could be proved guilty of having offered unlawful resistance and of having been connected with the illegal supply of arms.
The commanding general of the XV Army Corps has died in the meantime. However, the fact that the Fuehrer order regarding the treatment of the Italians was fundamentally modified and made more lenient as a result of the defendant's intervention, is apparent from his own statement from the statement of the witness VARNBUEHLER and especially also from the following:
The sentence "pursuant to the Fuehrer order 300 Italian officers will be shot summarily" which is contained in the above-mentioned daily report of 28 September which the XV Army Corps sent to the Army was taken over word for word into the original wording of the daily report of the same date of the 2nd Panzer Army. This is apparent from the photostat. But it can also be gathered from the photostat that there this sentence has been crossed out and the following has been substituted: "300 officers and 9000 men of the Bergamo Division were captured, they are being dealt with in accordance with the Fuehrer order". The Tribunal has heard the interpreter confirm this. This alteration of the daily report which had already been written cannot, in view of the whole situation, be anything else but an indication of the changed attitude of the army concerning the application of the Fuehrer orders and this change, as witness VARNBUEHLER also has testified, can only be attributed to the Commander-in-Chief of the Army, the defendant General RENDULIC. By adopting this vague wording for the report he wanted to prevent the army from committing itself to a course of which he disapproved and which he did not want to have followed.
The result of this intervention on the part of the defendant as Commander-in-Chief was not, as the prosecution lightly maintains, the execution of 300 officers, but the execution of only a fraction of them, about one fifth, and only of those whose responsibility for the unlawful and criminal actions of the Italian division was established in legal proceedings. This is quite clear from the report of the 7th SS Division, exhibit 327, and from the final report of the XV Corps to the Army, The defendant extended his mitigating intervention to the utmost of his powers.
He would of course have preferred it if the sentences could have been still further restricted. But to go any further was out of the question for him. The troops who had been engaged in the battle for Split belonged chiefly to an SS-Division. The court, too, which was conducting the proceedings was set up by the SS Division. It was impossible for any commander-in-chief of an army to exercise any influence at all over SS-troops, as regards legal matters. Further, the troops at Split, and particularly the SS-troops, had suffered exceptionally heavy and bloody losses in the fighting which the Italians had unjustly started. The four or five German battalions of altogether 2000 - 2500 men suffered the following losses: 176 dead and missing (the two terms equivalent in practice), 557 officers and men wounded. Such a very heavy loss, about one-third of the total strength, was an unusual event even in the big battles of the World War. In addition it must be remembered that the Bergamo Division had already capitulated once, on 11 September, and that, on perceiving that the battalion pushing through to Split was experiencing difficulties, they broke the capitulation agreement and resumed fighting. Further, the Bergamo Division had full knowledge of the capitulation agreement which had been concluded at Tirana. The German agencies tried everything to persuade them to desist from this unlawful fighting.
All the sentenced officers had made themselves guilty as the ring leaders who incited their troops to criminal fighting in contravention of the capitulation agreements which were binding for them and of the rules of war. They therefore put themselves outside the rules of war and could only be considered as franctireurs. Over and above this some of them made themselves guilty of military betrayal by supplying arms and munitions to the partisans after the capitulation. None of them was entitled to a prison-of-war status and to the rights of the Geneva Convention of 1929 attached to it.
The request of the XV Corps for a confirmation of the judgment of the drum-head court martial, which is contained in the above mentioned exhibit 328 is obviously based on an error, as, pursuant to the regulations of the proceedings, the judgments passed by a drum-head court martial had to be confirmed by the divisional commander.