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.
Neither could a commander-in-chief even hold the right of confirmation as regards an SS Court. That this request was erroneous is also apparent from the fact that the sentences had already been executed when the request was made. The three officers sentenced in absentia, referred to in the last paragraph of this exhibit, could have been shot legally in case of apprehension. This is expressed in the latter exhibit 599, volume XXV, English page 8, German page 8. This latter dealt with the same three officers. I may point out however, that they never were apprehended and never were shot.
The teletype of the 15th Army Corps, dated 29 September 1943, which refers to the Army's attitude, still remains to be mentioned here. This alleged attitude could only be an opinion, which was passed on verbally by telephone by some army staff agency which can no longer be ascertained; but it can never be regarded as the attitude of the army which only the commander-in-chief o** on his order, the chief of staff can express. Neither does the Corps seem to have been too sure of its case, otherwise it would not have sent its teletype addressed to the SS Division also to the army for information and as a matter of precaution. The defendant never knew of this teletype; he certainly would not have accepted the juristic nonsense expressed therein without contradiction.
In the same restricted and moderated way as in the case of the Bergamo Division, the orders of the Fuehrer were applied in the few cases where, in accordance with the orders of the Fuehrer, the troops took action against Italian officers who led their detachments to the Partisans and together with them waged a criminal battle against the German Armed Forces. Neither were all participants brought to trial, as had been ordered, but only the ring leaders and actual culprits. I emphasize, that the actions were not the result of Army orders in any instance.
From similar cases the indictment, in Court 3, paragraph 121, selects one case where two Italian Colonels were shot by the 100th Rifle Division.
The complete story is as follows:
In October 1943, larger numbers of Partisans ammassed in the hilly terrain south of Tirana in Albania, which is difficult to survey. From there strong Albanian bands, including numerous Italians, mostly in civilian clothes, launched attacks on road traffic and towns occupied by German troops, inflicting great losses. During these attacks outrageous atrocities occurred, where German prisoners were mostly undressed completely and then killed. To rectify this situation a larger operation had to be carried through to disperse the bands. In the course of the operation numerous Italians were taken prisoners, among them approx. 15 officers. In conformity with orders of the Fuehrer all Italian officers should have been shot. In spite of the inhuman conduct of the Italians and the Partisans during the last engagements when the German troops suffered the cruel loss of approx. 100 men, the commander of the 100th Rifle Division, who was in charge of the operation, requested that only the ring leaders be court-martialled; this was approved. It was ascertained that the above-mentioned two Colonels were ring leaders. Nothing whatsoever happened to the other officers. These events are described in detail and certified in an affidavit by General UTZ who commanded the 100th Rifle Division at that time. The proceedings against the two officers must be regarded as absolutely legal, they rested on the same legal basis as those against the Borgamo Division. Also in this case in question the same leniency in the interpretation of the Fuehrer orders may be observed.
The few other cases which are mentioned in the documents undoubtedly are of the same nature. I cannot, nor do I wish to go into them in detail since the statements made in the brief reports are inadequate for this purpose. Besides, it could not be ascertained whether the defendant had seen any of these reports even if the contents of one or the other were possible read out to him.
Finally, the army spared no effort, using propaganda and promises of an amnesty, to induce the Italians who were with the Partisans, to stop fighting.
Thousands surrendered with their officers. They were treated as prisoners-of-war.
I herewith conclude my statements on the Italian question, and I now turn to the struggle against the Partisans.
To judge the defendant's actions in combat against the partisans, we must base our considerations on the fact, that when he assumed Supreme Command in the Western Balkan on 26 August 1943, he was faced with a situation which had developed without any participation on his part over a number of years. Croatia had been a sovereign state with an autocratic government since April 1941, and jealously insisted on its rights when dealing with German agencies. In the interior of the country it waged a ethnic struggle against the Serbian, so-called Pravoslav minority in proper Balkan manner. The Reich Foreign Minister and the Minister in Zagreb regarded this policy as an internal Croatian matter. One part of the counter-forces together with a small number of ideological adherents was organized by TITO, who was sent from Moscow; and in the fall of 1941 he began his struggle against the German and Croatian troops and against those sections of the population who were of a different political opinion. The Pravoslav national Chetnikes, led by the Serbian General MIHAILOVICH, also fought against the German and Croatian troops, but, at the same time, also against the adherents of TITO who were fighting under a Communist banner. In other words, these fights were already in full swing in August 1943. Both large Partisan groups were supplied in particular with arms by the Allied.
The German troops were re-inforced considerably when the Partisan movement spread. The fighting methods as applied by the troops in combat with the partisans for a long time past, best illustrate how the situation had developed without any intervention by the 2nd Panzer Army. Its main task was to smash the forces of the Partisans in battle in larger or smaller operations against them. Reprisal action was taken in some cases when constantly recurring murders and attacks - the perpetrators of which could not always be apprehended - were carried out by partisans, who lived unrecognized all over the country.
It was found out that, through these operations, the partisans suffered considerable losses in battle and that they were definitely restricted in their organizational activity. On the other hand these reprisals proved to be the only way to stop the attacks and raids of the partisans against people and traffic installations in some localities and to keep them within reasonable limits in others.
I do not think I have to prove that it was impossible for the staff of the newly arrived 2nd Panzer Army - at least in the beginning - to introduce and employ other methods for fighting the Partisans than those in use for some time. To make such a demand would mean asking for the impossible. An additional factor of decisive importance was that, for a considerable time past and again without the 2nd Panzer Army having a part in it, decrees and orders had been issued which governed their actions and, as far as they were orders of the Fuehrer or the OKW, could not be declared invalid by the army. The most important orders were:
The OKW order, or, to be more precise, the order of the Fuehrer on measures of reprisal, dated 16 September 1941.
The regulations for fighting against the partisans, dated 11 November 1942, of which it was known that it was issued on explicit instructions by the Fuehrer who had a decisive influence on the formulation of its most important provisions.
The defendant has explained during direct examination why he and everybody else were not in a position to declare order of the Fuehrer or the OKW as invalid. If he had issued an order prohibiting the execution of such orders, there would not have been one court martial which could have sentenced a soldier for following an order of the Fuehrer or the OKW. However, everybody who would have tried to declare such orders as invalid would have had to bear the most serious consequences for diso bedience and insubordination. I think it is unnecessary to prove the accuracy of these assertions.
It was an undisputable fact for every German soldier in the Balkans at the time of the defendant's command that the Partisans did not have the character of a war faring people, but had to be regarded as franc-tireurs who stood outside the laws of warfare. I refer to my rejoinder to parts I and II of the legal brief of the Prosecution, where I proved that there was neither a legally recognized basis for this struggle, nor did the Partisans conform to article 1 of the Hague Convention. I also proved that the population had no right to offer resistance and that their hostile actions were unlawful, Also the fact that, since 1943, the Partisans grouped a part of their forces into units did not legalize their struggle, because on the one hand the legal basis for the fight was lacking as before, and, also, the units did not conform to the compelling regulations of article 1 of the Hague Convention. Apart from the fact that these units had nothing in common with the firm, disciplined entity of regular units, it would be arbitrary and unjustified by the laws of warfare to allege the formation of units to be a criterion for the recognition of the legality of the fight, a criterion which, in any case, is neither demanded by the laws of warfare as laid down in the Hague Convention, nor by the common law of warfare.
The political situation as outlined above, this tactical situation, these fighting methods, these orders and decrees in force were accomplished of acts when the defendant came to the Balkans as commander-in-chief of the 2nd Panzer Army at the end of August 1943, without his having had any part in them.
But his soldiers, too, had to accept them, although not one of them cared for a fight against the Partisans.
But in one sphere the defendant did make a fundamental change very soon: it was the sphere of the ethnic struggle waged by the Croats against the Serbian Provoslav minority, which then had died down for some time but had begun to revive again. From the beginning the defendant incurred the greatest risks by opposing this extermination policy with great energy and finally preventing it. He consciously took all dangers on himself which the serious differences with the highest Reich-and Party agencies were bound to involve. I must here draw attention to his undeniable merit in that he saved the lives of tens of thousands of Pravoslavs through his energetic actions. It would, however, be asking too much of the defendant if one would charge him with having failed to bring about a fundamental change of all conditions and in particular a fundamental change in the methods adopted in the warfare against the partisans. I do not think that it is necessary for me to prove that this would be beyond a man's strength. Besides he was not independent in his decisions and actions. The orders and regulations which had been given to the troops and which governed their activity, were more powerful than his own authority, as they were Fuehrer orders.
The only thing, which the Commander-in-Chief was able to do, was to give the war against the partisans a purely military character as far as and wherever possible and he actually did so. Most of the partisans were engaged in operations against areas occupied by partisans. The defendant has explained his principles in this connection with particular clarity and great emphasis in a letter to the Commanding General of an Army Corps. In this letter he demands the strict adherence of the Army to the political line in question of the Pravoslavs and the active fight against the armed forces of the partisans with the aim of crushing them. In this letter the same principles were adopted and the same measures demanded, which are applicable to the fighting between regular armies.
The defendant wished the fight to be conducted along these lines. This very exhaustive discussion does not contain one single word about reprisals. This instructive fact describes the whole attitude of the defendant towards such measures. He did not consider them to be decisive means in the warfare against the partisans; he himself has never ordered or demanded the application of this method. However he could not help realizing that in certain situations reprisals are the only means of coping with and limiting certain particular excesses in the partisans' fighting methods. Hitherto in no war, in which an army has had to fight against such partisan methods has the belligerent found any other method effective. And even armies which, have not encountered partisan methods in occupied enemy territory, have yet reckoned with this possibility and considered it necessary publicly to threaten reprisals and even to carry them out in certain cases. They, too, did not know of any other means.
Reprisals are not a military means of combat. Therefore they were taken only reluctantly and only if there was no other way out. In the area of the 2nd Panzer army they were only seldom applied. Neither has the commander-in-Chief even taken exception to the fact, that the measures taken did in no case reach the extent decreed in the long established orders. The troops knew the Commander-in-Chief's way of thinking and they also knew how they had to interpret and to put into practice army orders, which officially had to make certain demands. The defendant expressed this at his conferences and on his numerous visits to the troops, as is evident from the affidavit given by Markus.
Quite apart from witnesses' testimonies concerning the subject the last one was given by the witness Behr on 21 January 1948 - the prosecution documents themselves bear out this fact. If the figures, reported by the army corps to the army after reprisals had been carried out, are compared with those mentioned in the original orders, very considerable discrepancies become apparent. The recurrence of such reports proves that no objections were ever raised as regards those discrepancies, because one such objection would have been enough to put a stop to them.
The troops had soon developed the right feeling as to how such orders were to be interpreted, as against the purely military and tactical orders, where no interpretation but only the strictest and most exact obedience could be permitted.
It is important when considering and judging the reprisals which were carried out in the area controlled by the 2nd Panzer Army that it should be borne in mind, that this area with the exception of the small state of Montenegro, comprised two independant and allied states: Croatia and, after the collapse of Italy, also Albania. At the beginning the troops carried out reprisals only after consultation with the official representatives of the two Governments and with their consent. As a matter of fact from 22 December 1943 onwards the decision regarding the taking of reprisals rested entirely with the Croatian and Albanian authorities; this is expressed in paragraph 6 of the order issued by the Army Group.
Therefore, the troops and consequently the army can only to a very limited extent be charged with the responsibility for the reprisals during the initial period, but not at all for those taken after the aforesaid date. They became a purely Croatian or Albanian concern. In Montenegro reprisals were hardly ever taken. As a proof for the manner in which the reprisals described above were handled, I also refer to the statement of the witness Varnbuehler and of the witness Behr.
As a consequence of the sovereignty of Croatia the practice of taking reprisals had gradually developed until the 2nd Panxer Army appeared. They were carried out partly without special orders, partly also contrary to existing orders, inasmuch as these did not take into account the independence of the country. At first this practice was not mentioned in orders. Only the aforesaid order of the Army Group, takes this into account. In view of this situation it was rather immaterial whether and which orders existed in connection with reprisals when the 2nd Panzer Army arrived on the Balkan.
The decisive factor was the policy pursued by the troops in practice and this was, where it ran counter to an existing order to take reprisals, protected by the Fuehrer's order to respect Croatia's sovereignty and to support the authority of its Government. It was therefore practically immaterial with regard to the reprisals, that the Staff of the 2nd Panzer Army immediately after arrival started screening the numerous existing orders applying to every sphere and to sum up their most important provisions in collective orders. This naturally also applied to orders concerning reprisals and resulted in the army order dated 15 September 1943.
I have proved that this order does not contain a single provision of which the army was the originator, but only represents a clearly arranged summary of existing orders. As its heading shows this order was revised by the groups I c and I a of the army. The witness VARNBUEHLER, who was chief of the I a, has confirmed to the Tribunal that the purpose of this order was to collect and summarize existing orders from the time prior to the arrival of the 2nd Panzer Tank Army.
I would like to state here that this order does not bear the signature of the defendant in his own handwriting, but only his typewritten name. I have proved that the defendant was not with the army from 16 to 20 September 1943. On the 16th he was already with Hitler in East Prussia to make a verbal report, as may also be seen from the last page of the Prosecution Exhibit 367. This verbal report - there should be no need to prove this - dealt with the entire situation on the Balkans as the defendant found it on his arrival, and the changes which resulted from the disarmament of the Italians, in progress at that time. In all probability he spent most of the day on 15 September in preparing this verbal report. The order issued on this day, which was not signed by the defendant personally, was probably formulated on the strength of his directive to summarize the existing orders; and also was to take into account the demand for mitigations and the prevention of manpower being sent to the Reich. There was, of course, no possibility for the defendant to check this work.
I shall skip the following pages and shall continue with page 68. In the intermediate pages, I dealt with individual paragraphs of the order in order to prove its origin. I shall now deal with Section 5.
The first section of paragraph 5 has been taken verbatim from Exh. 306, section III, paragraph 3 (one but last section). The second section is based on the OKW-order of 16 Sept. 1941, which was enforced in the Balkans long before and could not possible have been ordered or overlooked when summing up the orders.
The witness SAUERBRUCH, one of the authors of the army order of 15 Sept, confirms in his affidavit that the question whether this Fuehrer order was also to be mentioned in the existing orders, was discussed, and that, in view of the fact that this was a Fuehrer order, this could not be avoided. This opportunity was however to be used to alleviate the order considerably in two ways, a chance which otherwise would not have presented itself. First of all, the highest figure for reprisals mentioned in the OKW-order was substituted by the lowest figure, and this figure was not represented as binding, but each commander was given a free hand, by the generality of the phrase: "The Rule is: "There are always exceptions to a rule. The army however, by this phrase, took the responsibility away from the commander, who made an exception to an OKWorder, and thus by their order accepted responsibility therefor. I do not think that this happened very often.
As a proof, that this intention of the army was correctly understood by the troops, I quote the order dated 25 Oct. 1943 of the 369th Inf. Division, which was under the command of the Army. The division interpreted this regulation still more freely.
Against the convincing power of this order, which the commander of the division had signed, the rebuttal exhibit 603 will not be sufficient to prove that this army order was not understood. The division moreover handled this order as being of minor importance, as the name of the division commander was affixed in typewritten letters, and the document itself was signed by an aide-de-camp. Finally I refer to the testimony of the witness BEHR as a rebuttal witness on 21 Jan.