'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.
Lastly, Document Exhibit 388, was also brought up against the Defendant. This document is a memorandum concerning a conference which was held between representatives of the XXI Corps and the Administration and Police Offices of Albania with regard to matters concerning Albanian territory. This memorandum naturally did not go beyond the Corps Staff and never reached the Army. Also, the matters discussed were in the province of the Military Commander, of the Higher SS and Police Leader, and of Minister Neubacher, none of whom was under the jurisdiction of the Army. Also, only the Higher SS and Police Leader was responsible for SS Division Skanderbeg which was still being formed. I wish to call attention to the fact that in this document, in an entry dated 11 April 1944, mention is also made of the evacuation of quarters for the formation of SS Division "Skanderbeg". Completed sections of this Division were on occasion tactically assigned to the XXI Corps and thus to the Army as well. With regard to the assignment of SS Formations to units of the Army, I wish to call attention to the KUHM Affidavit in Rendulic Document Book No. 32, Exhibit 33.
The SS-Division "Skanderbeg" is mentioned once again in Exhibit 440. In it, on 16 April 1944, the German Plenipotentiary General for Albania reports to his superior Military Commander for the South-eastern Area, that this Division had arrested 300 Jews in Pristina (Albania). There were not yet many units of the SS Division in existence. As shown by the previously mentioned Exhibit 388, it was still "being formed" a few days before this incident. It cannot be ascertained what SS office took the initiative in this operation against the Jews. At any rate, the matter was not within the province of the 2nd Panzer Army. The daily reports of the Military Commander were brought up at Army Staff Conferences concerning the military situation, only in rare instances, in which purely military reports were submitted concerning measures which were also of interest to the Army. As a result, the Defendant was doubtlessly not directly informed at all of the report concerning the arrest of the Jews.
The Military Commander for the Southeastern Area, who held the rank of a Commander-in-Chief of an Army and also his subordinates, the Plenipotentiaries-General in Albania and Croatia as well as the Military Commander in Greece, were solely responsible for representing the rights and obligations of the Occupation Power towards the population in accordance with the Hague Rules for Land Warfare. Thus, the requirements of international law were fully met. On the next to the last page of very extensive Exhibit 423, in the order for the "Regulations for the authority of the Army Groups and Armies with respect to Military Administration in the Occupied Territorities", there is an express statement to the following effect, I quote: "Headquarters Authorities and Troops are not authorized to issue orders to offices of the Military Administration." The Commander in Chief of the 2nd Panzer Army and his subordinate commanders were responsible only for their purely tactical duties and for the conduct of the troops who were completely in their charge. Control over the incident of the arrested Jews was not at all under the jurisdiction of the Defendant. On the other hand, the representative of the Military Commander for the Southeastern Area, the PlenipotentiaryGeneral in Albania, under whose jurisdiction the matter came, did in fact intervene at once, as proved by Thuengen's Affidavits in Geitner Document Book V.
Although Defendant Rendulic is in no way responsible for this matter, I have discussed it in detail, because, during the direct examination of the Defendant, the Tribunal displayed great interest in it and asked for clarification. On the basis of the preliminary hearing and of the documents, the Prosecution ought however to be fully conversant with regard to questions of the competency and the responsibility of the Military Authorities in the Balkans. I therefore cannot understand how it could raise the above-mentioned matter as a charge against the Defendant.
I will omit the succeeding pages and continue on page 110:
I have not yet considered a number of Prosecution Documents, which contain, above all, reports of retaliatory measures.
I now wish to devote the following statements to these documents:
Retaliatory measures included either reprisal hostages or the burning of houses or villages. In reply to Counts III and IV of the Legal Brief of the Prosecution, I proved the legal basis and the permissibility of retaliatory measures. In it, I also proved that the retaliatory measures in the territory of the 2nd Panzer Army were not only carried out in complete agreement with the requirements and restrictions of strict international law, but also, over and above that, they satisfied all the requirements listed in the works of the authors of international law. In particular, I have also proved that the general and specific charges raised on Pages 31-33 and 44-49 of Part IV of the Legal Brief of the Prosecution, do not in one single case involve the territory of the 2nd Panzer Army, at the time that it was commander by the Defendant; and it is those very pages that contain the real charges which the Prosecution has to raise. The retaliatory measures in the territory of the 2nd Panzer Army, moreover, were strictly in keeping with the forms and the limits which the Prosecution in Part IV of its Legal Briefs on Pages 25-28, wishes to see respected. I would be very grateful to the Tribunal if it were to compare the statements listed on Pages 31-33 and 44-49 of Part IV of the Legal Brief of the Prosecution, and the requirements listed on Pages 25-28, with the execution of the retaliatory measures in the jurisdiction of the 2nd Panzer Army, as I have shown, and if the Tribunal were to examine them carefully.
I have also proved that the troops acted under orders and regulations which they had long before the Defendant arrived; and that the Army Order of 15 September 1943, (Page 7 of the English version, and Page 11 of the German) was nothing more than a collection of orders of long standing, with appropriate alleviating measures. This order can therefore never be considered as a handing on of orders. It did not have the slightest influence upon the conduct of the troops. If this order had not been issued, the situation would not have been altered at all, for it added nothing new.
Finally, I have shown that at all conferences and troop inspections, the Defendant had called attention to the necessity for refraining from all avoidable severity and for allowing moderation to prevail even if there were any orders to the contrary. In this connection, I refer especially to the affidavit of the former ordinances officer Markus, who accompanied the Defendant on all conferences and trips. The troops knew what the Commander-in-Chief's opinion was. There were no abuses of any kind.
It was only on rare occasions that the Defendant himself read the daily reports. Not a single one of the reports included in the documents has been initialed by him. Their main contents were reported to him in daily conferences concerning the military situation, or, if when he was on a trip in Army territory, an extract was sent him by telephone or by radio. He was doubtlessly generally aware of what was going on of events, even if it cannot be said that a specific instance was necessarily brought to his attention.
The picture which may have confronted the defendant evolves from a study of Exhibit 375 in connection with his statements while under direct examination. As already mentioned, I submitted a complete translation of this document of which only a very small part had been translated into English; this document contains daily reports of the LXIX Corps in the territory of which most of the reprisals were carried out since the main line led through that territory. These reports cover a period of 95 days for which only 32 daily reports are available. 63 reports are missing. The reports at hand have been selected by the Prosecution. But even the available reports show clearly that the number of railroads and bridges which were blown up and the number of dead and wounded as a result of assaults and raids on the railroad were larger than the number of hostages and that frequently there were 6 to 8 raids and bloody losses before reprisal measures were taken. But an accurate picture of existing condi tions can only be gained if the 63 missing reports and written reports on the losses incurred by the frequent blowing of railroads were also available.
These losses were seldom recorded in the daily reports because the ascertainment of figures took up too much time owing to the frequently difficult task of identifying the victims. Not a single one of these reports has been submitted. One can safely assume that the missing daily reports contained only raids, assaults and losses but no reprisals. If all reports were to be submitted the ratio would be considerably altered much in favor of the hostages and the special moderation in the execution of reprisal measures would become clear.
The same applies to other Corps areas. Only reports on reprisal measures are available not however, reports on raids or losses. Such reports were of no interest to the Prosecution which made the selection here as well. Upon examination of the number of reports submitted for the 392th, 373rd and 204th Divisions subordinate to the XV Corps or for the 118th, 369th and 7th SS Divisions of the V. SS Corps and the 100th, 181st, 297th Divisions of the XXI Mt. Corps and the 173rd, 187th and 1st Cossack Divisions of the LXIX Corps, one will realize that there are but few. The Divisions and Corps, however, dispatched four situation reports a day, i.e., 120 reports for each unit in a single month. Thus for all formations under Army Command from the Division and up, this amounted to about 2000 reports a month and accordingly during the whole period of the Defendant's command (10 months) 20,000 reports. But it is just these missing reports which contain information concerning the majority of raids, assaults and losses but certainly not concerning reprisal measures. Therefore, if we should occasionally find a report of reprisal measures from the Corps areas which mentions figures larger than those of German losses incurred, I beg to remind you that losses many times that number must have been contained in the missing reports and that in the case in question reprisal measures were also instituted only after several raids and losses.
The reported reprisal measures were partly also carried out by the Croat authorities for their own purposes. These incidents were only included in the reports as incidents which had occurred in the area of the reporting authority but they did not involve Army troops and could not have been caused or prevented by them.
From the end of December 1943, the decision with regard to reprisals even for raids on troops and Army installations passed altogether into the jurisdiction of the Croat and Albanian authorities. Therefore the troops and the Army were relieved of all responsibility for reprisal measures.
I have shown that the documents at hand provide sufficient evidence that in the area of the Second Panzer Army, reprisals were carried out with great moderation and never beyond the scope of absolute military necessity.
But I have also shown that no detailed correct picture of conditions can be given by the available documents and that a correct picture can only speak in favor of the troops and the Army. It may seem understandable that Prosecuting Authority would submit only documents which may be expected to support the charge. But such a procedure can only be justified if Prosecution and Defense submit independent evidence and when Prosecution and Defense enjoy equal freedom and privileges as happens in nearly all regular proceedings. But in the case at hand all documentary evidence was solely in the possession of the Prosecution which, as has been shown has selected and submitted only evidence which it considered suitable for prosecution purposes.
Therefore, the Defense finds itself in the difficult position of having to rely, in the main, on prosecution documents. Thus the defense appreciated all the more the Tribunal's decision to make available a number of new documents. Although these documents are few in number, they have shown the value of a document which has not only been selected from the Prosecution angle as compared to the others. Unfortunately, I must state that among these documents there is none from the Staff of the Second Panzer Army and that the war diary of this Army has not been made available in contrast to that of other commands although the former has been proved to be still in existence and to contain conclusive evidence.
As request for the handing over of this journal which was made by the Defense some time ago has unfortunately been turned down.
Thus the difficult position of Defense Counsel for Defendant General Rendulic which results from lack of documents was not improved by the new documents. I think that by my statements concerning Exhibit 375 I have sufficiently illustrated the value and significance of Defense documents for the defense of a person who has been indicted on the strength of documentary evidence alone. Only when I become completely aware of the described position with regard to evidence, did I understand the passage in the Opening Statement by the Prosecution (page 11): I quote:
("Indeed, as this case progresses, it will rapidly appear that the evidentiary questions are of secondary importance".)
PRESIDING JUDGE BURKE: We will take our morning recess at this time.
(A recess was taken.)
COURT NO. V, CASE NO. VII.
THE MARSHAL: The Tribunal is again in session.
JUDGE BURKE: (presiding) You may proceed, Dr. Fritsch.
DR. FRITSCH: Am I in agreement with the Tribunal in stating that I have 37 minutes left in which to read.
JUDGE BURKE: Approximately 37 minutes. Judge Wennterstrum will continue to keep track of the time.
DR. FRITSCH: I shall now deal with the problem of Norway.
I can do no better than to start my statement concerning the count of the indictment referring to Norway by summing up the result of the inspection by the Tribunal, the Prosecution and myself. We are grateful for the proof which we were given that this large tract of land which may almost be called uninhabited cannot be compared with any other European country. This territory is approximately of the size of Holland and Belgium together and has a population of round 62,000 people. The settlements are widely scattered and only few compact places such as Kirkenes and Hammerfest may be looked upon as villages and towns. Houses are mostly wooden structures which are far less substantial than solid stone buildings, but on the other hand they can be rebuilt far more easily. In this territory, the life of more than 200,000 German soldiers was at stake at the beginning of the Winter 1944. These lives had to be weighed up against a minimum of assets and a certain amount of clearly temporary discomfort to the native population. At this point the question arises in due consideration of all interests involved whether there existed a military necessity to carry out measures of destruction and whether this destruction can be brought into harmony with the provisions of International Law.
In all wars in the past, it was generally customary for a retreating Army to destroy roads, bridges and railroads.
Destruction is a natural weapon of war. Rules and regulations for this weapon are laid down in detail in the tactical regulations of all Armies. It is the purpose of this weapon to obstruct the enemy and render his objectives more difficult for him. Destruction of roads and transport installations reacts above all on the enemy's movement and advance by stopping him and delaying him until the created obstacle has been removed. The time required for such operations is largely determined by the nature of the destroyed objects as well as the size and extent of this destruction.
But destruction had not only its repercussions on the enemy's movements but on the possibility of existence in the destroyed area. This was aimed at and caused by the destruction of housing facilities at a time when housing was of decisive importance due to the time of the year and the weather. Whereas the destruction of roads and transport installations was practiced during every retreat in every war, the destruction of quarters naturally took place only in Winter and in regions where prolonged temporary housing of large formations is not possible. The burning of all localities by the Russians in 1812, cost Napoleon two thirds of his army. The burning of all quarters not absolutely necessary for the population crowded together in a small area, which was carried out by the Germans during the 1941/1942 Winter Campaign, was one of the decisive factors which at the time saved the German Army from disaster.
No one can doubt the military necessity of such destruction while retreating before a superior enemy. Even in the codification of the rules of warfare, allowance was made for such cases.
Thus the Hague Rules for Land Warfare, in article 23g, declare destruction to be admissible if the necessity of war urgently demands it.
Little proof is needed to show that the destruction of roads and transport installations played a specially important part in the retreat from the Norwegian Finnmark just as for the fact that life in this area is impossible in Winter without billets which can be heated and that the destruction of quarters must have a decisive effect on military operations.
Thus we must now find out whether there was any necessity for the 20th Mountain Army to carry out this destruction in the Finnmark. The Prosecution has asserted that this destruction was not necessary. But it has too late recognized the problem of Norway or not at all because it relied in the main on the atrocity stories in dubious Norwegian reports and it omitted or was unable to produce, conclusive evidence concerning the absence of military necessity for the destructions, as asserted by it. One of the Prosecution witnesses, the Norwegian General Dahl was very reticent. A noble character he realized, beyond a doubt, the relative importance of his own judgment in this matter for after all he mainly knew about the war out of books and was not in charge of any unit in combat with the enemy.
The other witness, the German General Jodl stated that he had not considered the destruction a necessary one because he did not expect the Russians to take up the pursuit. When asked why then he obeyed the order to carry out destructions, he answered that he had done so because one could not be absolutely certain whether the Russians would take up the pursuit or not. The next question whether he considered the destruction necessary if the Russians were to pursue the German troops, he answered in the affirmative.