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.
'48.
It was unavoidable to include a regulation from the OKW order in the collective order, and in spite of this, it was only a matter of form, as the OKW-order was issued to the troops long before. It cannot therefore be considered as constituting the transmission of the OKW-order. This regulation was moreover of no practical importance whatsoever, as it did not in any way influence the reprisals taken. These did not change after the staff of the second tank army arrived, as these reprisals were taken on the basis of former orders, taking into consideration the special circumstances of the public law in Croatia, and as the army had not issued a single new order in this connection. This fact becomes evident from various documents offered by the Prosecution. The same applies to Albania. The Corps Headquarters of the XXI Mountain Corps in Albania was made up of the staff of the commander of the German troops in Serbia which was dissolved when the army arrived; and the divisions used for the occupation of the country, had also been located in the Balkans for a long time.
With references to the third section of paragraph 5 of the order dated 15 Sept, the most important part is identical with a regulation included in Exh. 263. This is probably an order given by the commander of the German troops in Serbia, but there must have been a similarly worded order for the troops in Croatia, because otherwise the identity of these two orders could not be explained. This order was also found to be in force.
The contents of the first section of paragraph 6 have been taken from paragraph 7 included in Exh. 295 Document Book XII, English p. 60, German p. 53, the second section is identical with paragraph 4 of the above mentioned exhibit.
Finally paragraph 7 has been taken verbatim from section III, paragraph 4 of exhibit 306, English p. 113/114, German p. 95. Only the regulation of the original, that persons who were evacuated from districts which had been undermined by partisans, were to be transported to the Reich if they were fit for work, has not been included in the first paragraph.
Here the opinion of the army on the transfer of labor to the Reich, already finds clear expression.
To sum up it can be said with reference to the order dated 15 Sept. 1943, Exh. 340, that nothing now was included or ordered, if we disregard the alleviations of valid orders included in paragraphs 5 and 7. It lists nothing but a summary of excerpts of orders already in force. It meant a simplification for the troops and that was its sole purpose. If this order had not been issued it would not have made the slightest difference to the situation as far as orders issued were concerned. At this point I should also like to refer to the important fact, that the army did not hesitate, to cancel the regulations of the OKW-order, taken from paragraph 5, when the development of practice of reprisals as mentioned above, put the whole matter into the hands of the Croatian and Albanian authorities. The Army order for the cancellation becomes evident from the last section of the entry into the War Diary of the LXIX Corps included in Exhibit 377.
The attitude of the army towards the transfer of labor to the Reich, as mentioned by me when discussing paragraph 7 of the army order, causes me to deal more closely with a further charge of the Prosecution. In the indictment in count 4, paragraph 15 f it has been asserted, that the commander-in-chief of the 2nd Panzer army on the occasion of operation "Panther", gave orders for the deportation of the male population of Croatian villages and towns, for the purpose of forced labor in Germany. I proved, that this assertion is incorrect and that the contrary is correct.
There was at that time no reason to assume that the work in Germany was to be regarded unauthorized slave labor. Nevertheless, the Army Order of September 15 already showed, as may be seen from my explanations on Section 7 of this order, that the Army was not in favor of transferring workers to the Reich. The reason for this was that there were not sufficient workers in Croatia and Albania to accomplish the necessary work of these countries and of the German Wehrmacht. In this matter the Army did not even want the deportation of captured Partisans for labor in the Reich, as directed by OKW-order of 8 July 1943.
Proof for this is found in the order of the LXIX, Corps of 6 October 1943, which, in paragraph 1, states: "The Army has directed that captured Partisans, Hostages and Evacuees are not to be deported until further notice." The defendant explained in the cross-examination why this OKW-Order, Exh. 302, for the deportation of Partisans could not be executed. From the last paragraph of exhibit 394, we could see that the Army maintained this point of view throughout the whole period during which the defendant was in command. There in an order of the XV Corps dated 20 June 1944 -- that is 3 days before the defendant left the Balkans -- the deportation of captured Partisans is again prohibited. The author of this order testified that this order was published in accordance with an order from the Quartermaster General of the 2nd Panzer Army. I now continue on page 79 b, last paragraph.
I now turn to the so-called "Kommissarbefehl" (Commissar Orders) in 3 No. 12 b of the indictment (Exhibit 13 and 14 vol. 1). Here too I have proved that the assertions of the prosecution are incorrect. The 52nd Infantry Division, which was under the command of the defendant, was not transferred from France to the East until the beginning of the campaign against Russia. It was prohibited to transmit the Commissar Orders beyond army units in any but a verbal way. This is specifically ordered in this decree. During the first weeks of the campaign (the division had been in combat for a long time already) the defendant received a report from the Lc of his staff that verbal orders had been received from the Corps as follows "Decree of the Fuehrer: Captured Commissars are to be shot", and also that these orders were immediately to be transferred verbally to the troop units. This was done by the intelligence officer.
It is not possible to evaluate the Commissar Orders without examining the motivation contained in it. It could not strike the defendant at the time that a long-winded motivation for the orders was lacking which could not possibly have been transferred verbally from HQ by way of the Corps to the division, because in the basic regulations "Die Truppenfuehrung" (On the Leading of the Troops) it was ordered explicitly, I quote:
"Motivations do not belong in Orders". The defendant thought that these brief orders could perhaps constitute reprisals because it was well known that the Russians repeatedly shot the German prisoners.
It is the essence of every reprisal that an injustice done by the enemy is reciprocated by an injustice committed by oneself. When, as in this case, the leader of the State himself decrees what may be regarded as a reprisal one cannot expect a division commander who is facing the enemy and engaged in daily combat to consider himself authorized to examine his orders exactly, and particularly not orders whose factual and legal foundations were completely unknown to him. Especially here it is necessary that the commander of a combat unit adhered to the principle that the subordinates can, in case of doubt, rely on the orders as issued.
At this point I should like to take the opportunity of calling the attention of the Tribunal to the method of keeping matters secret which went to the extent that important orders were transferred not even in writing but verbally to the subordinated command units and that in a degree which made it impossible for the subordinates to examine a specific order even superficially. Moreover the defendant has made an effort -- as he states himself with credibility -- to learn more about these orders, but he received the answer from the Corps (the agency competent for him) that there, too, the orders were only known to the extent to which they had been transmitted to the Division. Further details on them were not known. Therefore it was not possible for the defendant to re-examine these orders. The defendant, however, cannot be charged with this and he cannot be held responsible for the fact that he transmitted automatically and without any action on his part orders from higher offices, without even having had the opportunity to prevent their transmission, especially since he was with his regiment in combat on the day on which the orders arrived at the Division.
I have proved that the defendant never insisted that the orders be executed by his troops whose disapproving attitude was known to him. On the contrary, on the occasion of conferences and official visits he always demanded humane treatment of all prisoners of war according to the principle of international law. I have proved further that no knowledge existed in the Division of the defendant of a case that a Commissar had been shot.
All this has been proved by the affidavits of Mahlmann and Reymann, both of whom were regimental commanders in the 52nd Division almost for the whole time during which the defendant commanded it.
Neither the testimony of the defendant nor that of the two witnesses can be affected by document exhibit 606 which was submitted in the course of the cross-examination, since the people concerned are not Commissars in the sense of the Commissar Orders but guerillas, as is clearly evident from the document.
I also point to the fact that the cross-examination conducted by the prosecution during the rebuttal cannot shake the testimony of these witnesses in the least.
I now come to Count 3, 12 h of the indictment which charges the defendant with having transmitted and executed the so-called Commando Order, Exhibit 225, Book IX. I have proved that this assertion is incorrect. When these orders were issued in the fall of 1942 the defendant was in Russia and still remained there for a year. He never received the orders there and they never were applied.
When the defendant arrived in the Balkans at the end of August 1943 these orders had already been with the troops for a long time. Thus he did not pass them on there either.
On the occasion of visiting his troops he emphasized, however, to the commanding officers that the execution of the "Commando Orders" did not lie in the intentions of the army and he was also able to note that the troops, too, refuted these orders and never applied them.
I have proved that the "Commando Orders" never were applied in repeated combat action with British Commando units in the Dalmatian island territory, but that on the contrary prisoners of Commando units always were treated as prisoners of war. In this connection I remind you of the particularly characteristic case of the British Lieutenant-Colonel Jack Churchill, the commander of a Commando battalion who expressed his gratitude in writing for the fair treatment of his person and his soldiers after being taken prisoner. I have submitted as proof the affidavits of Thoerner No. 21, exhibit 20 and that of Sauerbruch in Document Book Rendulic I. I also refer to the statements of the witness Varnbuehler made before this Tribunal. The above-mentioned accusation of the prosecution therefore must be described as unfounded.
The witness Harling stated that Himmler issued orders concerning Lieutenant-Colonel Jack Churchill during his transport back. The defendant learned of this only through this testimony. He knew, however, that Churchill was alive and that he was on an official trip in Asia in the summer of 1947. Together with Churchill his men too were shipped back by the army as prisoners. As it becomes evident from Rebuttal exhibit 651 they fell into the hands of the SD. In any case this happened without the action or volition of the 2nd Panzer Army and can at best be explained by the confusion which Himmler's personal interference must have caused. It is important for the defense to note a fact mentioned in the same exhibit, namely that nothing happened to these men either.
That it had not been intended by the troop unit or by the army to turn these men over to the SD becomes evident from the fact that they could not possibly have had an accompanying letter with the necessary dates with them, which otherwise would have been the case. Because the statements contained in Rebuttal exhibit 651, first paragraph, and exhibit 652, second paragraph, that they had been captured on the island of Oljet, can only be traced back to an investigation carried out by the police during which the men, either consciously or sub-consciously stated incorrect facts.
This is proved by the Thoerner affidavit. Thoerner, who was the officer who took Churchill's Commando unit prisoner, was in command of the battalion on the island of Brac which is also the place where Churchill and his men were captured, as is mentioned by him in the second paragraph of the affidavit.
Also the date of the capture in the Rebuttal Exhibits is incorrect. Thoerner states that the fight took place during the night of 3 - 4 June. The letter in which Churchill expresses his gratitude and which is attached to the affidavit is dated 6 June. It would be entirely impossible that a prisoner would have remained from 22 May to 6 June, i. e. 15 days, within the area of the troop unit.
Exhibit 651, however, also shows that it was something entirely new and unusual to the SD suddenly to have brought to them five captured Englishmen. He reported the matter immediately to his superior in Berlin who in turn sent an excited express letter to the OKW. This should be sufficient evidence to prove that no captured member of a Commando unit was turned over to the SD before the misunderstanding occurred which was caused by Himmler's interference. I point in particular to the fact that the letter is dated 16 June 1944, that is, a week before the defendant left the Balkans. I am convinced that his statement to the effect that the prisoners of Commando units had always been treated as prisoners of war and that they were never turned over to the SD by the army, cannot be doubted. I will omit the next few pages and continue on page 92.
The next matter with which I am going to deal, concerns the evacuation of the able-bodied population from the Dalmatian islands, as ordered in the order, exhibit 381, volume 16, English page 55, German page 104. This evacuation was a military necessity, since the coast area was being prepared as combat zone. Evacuation of the civilian population from combat areas happens to be common usage with all armies because it is a military necessity; proof for this is the evacuation of the population within the area of the Westwall and of the Atlantic Wall in the West; as well as the evacuations carried out in Italy by the Allies and the Germans, and finally by the British on their coast of the channel.
The Army High Command demanded the evacuation of the entire coastal area. The Army, however, neither had the forces, nor the means of transport for moving such a vast number of people, who, what is more, would have suffered great losses on account of enemy air activities. The difficulties in accommodating those people were also too great. For this reason the Army limited the evacuation to removing the ablebodied population from the most dangerous area which were the islands. The evacuation of the population from the coastal area was intended only for the case of enemy landings and was only being prepared.
In this connection I want to quote a note contained in the diary of the 15th Corps and dated 20 March 1944 which sheds light on the attitude of the defendant towards the church the second Panzer Army ordered to exempt the members of convents from evacuation and to spare the possessions of convents. This order, which was in sharp contradiction to the policies of the Party constitutes a special exception from the general order of evacuation and for this reason could only have been issued by the defendant or with his consent. This order reveals the real attitude of the defendant towards the clerical circles in an entirely different way than is shown in the diary of the witness Vogel, which the author himself characterizes as superficial and in which, according to his testimony, the discussion concerned only the clerical circles active in politics a problem which had been existent in other countries too, long before National Socialism existed. The prosecution itself considered Vogel's diary as not essential for the purposes of evidence and therefore did not present it as exhibit. I therefore refrained from bringing more proofs for the defendant's real attitude towards the church, which would have been an easy undertaking.
However, I did not do it for another reason. The Tribunal may have noticed that I refrained altogether from presenting any testimonies of a personal character on behalf of the defendant. I considered it more valuable to have the facts speak for themselves. They give a more reliable picture of the defendant than subjective testimonies.
I am in a position to state another fact characteristic for the personality of the defendant and refer to the entry of 6 April 1944 in the war diary of the 15th Corps, which says: "The Army commands in the process of evacuating the population of the island and coastal areas, to safeguard the purely human interests of the population of the state of Croatia, with which we entertain friendly relations and to avoid hardships.
We can doubtlessly see here the defendant's endeavors to make the population feel as little as possible the hardships of military necessity. If, six months later we find a very similar order in the order of the 20th Mountain Army concerning the evacuation of Norway (exhibit 504, volume 22), fig. 7, this is certainly no accident. The attitude of the defendant, as proved on those occasions, with regard to the population of the countries where he had to carry through unavoidable military emergency measures, can only be the result of a genuine humanity on the part of the defendant, which is expressed not only in speeches and gestures, but which also proved itself in the hardest reality. In this connection I also want to point out that the purely human side of his character has repeatedly proven itself in a very decisive way in his attitude towards the Italians towards captured commissars and English commando troops as well as in the fight against Partisans. I will omit the next few pages and continue on page 102.