It must be supposed that this is due to the fact that none of his two Commanders was indicted and therefore v. Geitner was placed in the deck, so to speak, as substitute for the missing commanders. But all this can indeed not justify his being placed in the dock.
If one looks at the Generals who are in the dock in this trial, if one endeavors without prejudice create daily as regards their character and their attitude, and listens to the reports on the reputation these Generals enjoyed within the Armed Forces, one comes always again to the conclusion that the wrong people were summoned into the dock. That is the unanimous opinion of all officers and soldiers who became personally acquainted with these Generals, who could observe their official activity for years, and are best able to judge them.
The following statements concerning the case of v. Geitner may perhaps be emitted; there we deal with an opinion concerning the remainder of the counts of the indictment which have already been commented on by General v. Geitner during his examination on the stand. I may perhaps just refer to these statements and recommend them to the judicial notice of the Tribunal.
I shall continue reading on page 66 at the bottom of the page.
The evidence presented for the exculpation of the defendant Geitner comprised a period of over 40 years. It showed the defendant to the Tribunal as a soldier of extraordinary personal valor, who received in the first World War, as a young captain, the highest Bavarian decoration for gallantry, which apart from him, only about 200 officers received, and which gave him the personal status of a nobleman. But we also got to know him, during the long months of this trial, as a man, who distinguished himself everywhere and so in Belgrade, by his honest and faithful performance of his duties, who was to all the officers of his staff an example of a humane way of thinking and chivalrous attitude.
It is worth emphasizing that not a single Serb was prepared to testify here as a witness against v. Geitner; for nobody could talk badly of him. He can bear the responsibility for everything he had done; he always tried to perform his duties not by means of the provisions of a law code which might have been employed towards a conquered and defenseless enemy, but with a heart that recognized the human being in the conquered enemy and wished to help him.
I move that the Defendant, General Ritter v. Geitner be acquitted, since his innocence has been proved, acquitted, it is true, to a hopeless life of poverty, of misery and deprivation, that will be his fate just as it will be that of millions of other political refugees in present Germany, who have lost everything, home and country, and all their property; still, on the other hand, the acquittal for a future into which the defendant will have saved all the sublimest ideal goods which are owned by a good man and brave soldier. His honor as an officer who at all times acted fairly and chivalrously, and his blameless conscience which testifies on behalf of him that he always and everywhere and in each position performed his duties in an exemplary manner; his duties as a Christian and as a soldier, his duties towards God and mankind, towards his own fatherland as well as towards the enemy of yesterday, in whom he saw the friend and ally of to-morrow.
Let the Tribunal decide, what it will -- his conscience acquits him; this man has not done a thing he need be ashamed of to-day.
Behind him is a life of hard performance of duties, a life of a decent way of thinking, a life of a struggle for the right and order and humanity. Before him he sees, even if he leaves this court room as a free man, an old age of distress and deprivation, an existence without a home, a future, without hope.
If Your Honors, please, I should now like to start with the final plea for General Hubert Lanz, which is on page 69 and the following pages.
I, General Lanz was during his service in Greece in the time between September 1943 and October 1944 only troop commander. He never was territorial commander and never had executive power. The troops under his command, the 1st Mountain Division and the 104th Light Infantry Division had been in action before his arrival in the Epirus (Greece) and were already in receipt of the orders by the OKW and the Army Group authorizing reprisal measures. By virtue of these orders which had not been issued by Lanz, the divisions were, in conjunction with the territorial agencies, authorized to an responsible for, the reprisal measures, not the Army Corps.
The "Special Instructions" of the 1st Mountain Division of 13 September and 25 October 1943 dealing with reprisal measures, became known to General Lanz only at Nuremberg through the documents presented here. The division commanders were judicial authorities. The Commanding General Lanz had no Field Court Martial. II. In conformity with his spiritual way of thinking, General Lanz was opposed to the taking of hostages. He never ordered the execution of hostages. Once only on 3 October 1943, he ordered the seizure of hostages on cogent military grounds. Since that measure served its purpose, the hostages were released; this has been proved.
The warning given to the inhabitants of a Greek village because of repeated raids in May 1944, which was mentioned by the Prosecution in the course of the cross-examination resulted a few days later in the arrest of 18 suspected people. Even these people were not shot, but only detained, which is absolutely permissible according to international law.
The execution by shooting of 71 Communists in the area of the 104th Light Infantry Division has neither been ordered by General Lanz, nor carried out by forces under his command, but by a Greek Evzones detachment, which was never under the command of the Corps Commander (Lanz), but always only under that of the Higher SS and Police Leader of Athens, thus removed from any influence on the part of Lanz. For this reason alone Lanz does not bear any responsibility, so that there is no need to examine the other legal problems which might be raised by such an affair.
In as far as in individual cases reprisal measures were taken by the divisions under his command under their own jurisdiction and responsibility, they had been caused by cogent military necessities. In no case they were ordered by General Lanz. In so far as he was subsequently informed of such measures, his examination of the circumstances gave him in only one single case sufficient reasons for interference. In this case (Pinguiades) the guilty ones were handed over the Courts for trial in orderly way and sentenced to prison terms by the Court.
The case Akmotopos (Count 9 f of the indictment) was a tactical measure, which was carried out by independent order of the 1st Mountain Division. Lanz had described this Akmotopos case during his own interrogation on 20 November 1947 in every detail; there result the following facts for the legal evaluation:
The small mountain village was situated in a notorious band area, from which numerous serious and vicious attacks against the German forces had been made. When the German troops approached, the village was defended tenaciously. It had to be taken by storm after violent fighting with the use of artillery and mortars. In this fight part of the bands as well as part of the civilians fighting with them were killed. The village burned down. Part of the bands escaped. The peaceful civilian inhabitants had, according to an eyewitness report. left the village before.
The order for the day for the Corps issued by General Lanz on 1 October 1943, was an obituary for the Regiment Commander, Lieutenant Colonel Salminger, who had been murdered by the bands. The retaliatory action anticipated in the last sentence of the obituary was justified by the following facts. a) Salminger!s assassination had been preceded by several attacks on practically the same spot. On one of these occasions, the chief of a bakery company, that is, of a peaceful rear installation, Captain Stitzinger had been shot from behind.
(b) A great, and quite understandable agitation had taken possession of the troops as a consequence of these incidents, so that the danger arose that they might take the law into their own hands.
(c) In this position General Lanz could not ignore these happenings tacitly, since the troops would have felt left in the lurch by their General. That is why he issued the obituary in the form of an order of the day for the Corps, using a language adequate for the prevailing state of affairs. It was not a tactical order. The following statements which deal further with the Akmotopos incident I shall not read, but recommend them to the judicial notice of the Tribunal. Figure III on page 72 I shall also omit, this deals with the burning--down of villages and localities. I continue reading under figure V on page 73: -
V. The treatment of the Italians after the Italian capitulation and, in particular the fighting with the troops of the Italian General Gandin on the Islands of Corfu and Cephalonia have essential significance in the indictment against General Lanz.
Since, in the legal evaluation of these events, it is a question of problems which from a point of view of international law are specially interesting and unusually difficult, they must be gone into more closely.
Document NOKW 960, Exh. 448, Doc. Vol. 19, Page 32 fol. English page 33 fol was submitted against Lanz first of all; according to it 74 Italian Officers were shot at the beginning of October 1943. This matter can in truth in no wise incriminate General Lanz. For he had expressly ordered in his Corps Order No. 3 dated 24 September 1943 No. 1: "The disarmed Italians are to be dispatched along the main highway of Division with a light escort detachment so that they can join the other Italians by going via Moscovic to Korea." His Order was therefore clearly and unequivocally to the effect that the capture Italians were to be treated as prisoners of war. After the issue of this Corps Order which (according to its distributor) was directed to the I Mountain Div., the Commander of the latter General v. Staettner ascertained that these 74 Italian Officers had joined the Bands and had fought with them for 8 days in the Albanian coastal area against the German forces. Thereupon, General v. Staettner had 74 Italian Officers deemed to be guilty shot, while the mass of Italians captured in these actions (about 3,500) were taken into captivity. General v. Staettner, without previously asking his Corps Commander (Lanz) ordered, on his own initiative and on his own responsibility, the shooting of the 74 Italian Officers mentioned. He did this independently on the basis of Hitler's Order dated 15 September 1943.
This order given by Staettner and his reasons are in Doc. Vol. 19, This is not the place to examine whether General v. Staettner's way of acting was right or wrong, for, at all events, Lanz cannot be responsible for an order issued by a General under him, in violation of the clear instruction of his Commander.
Further, Document NOKW 1118, was evaluated so as to incriminate Lanz. According to it "Italian soldiers who were wearing civilian clothing and had remained among the population were to be ascertained by raids and shot, since such indicated intensification of danger from bands.
PRESIDENT: Dr. Sauter, we will now take our afternoon recess.
THE MARSHAL: The Tribunal is again in session.
PRESIDING JUDGE BURKE: You may proceed, Dr. Sauter.
DR. SAUTER (Counsel for defendants von Geitner and Lanz): I am continuing with page 75 at the bottom "The order of 16 September 1943 -- that is the order of the Italian soldiers -- was given by the 22nd Mountain Army Corps but was not given by General Lanz.
This can be seen from the fact the order was given by General Lanz independently but it was rescinded.
"The Italian soldiers who had been caught in civilian clothing were rather, in practice, treated exactly like prisoners of war and moved to prisoner of war camps like other Italians in uniform. Consideration of events on Cephalonia and Corf demands, first of all, evaluation of the prelude to them in Athens: Lanz had come to Athens at the end of August 1943 to consolidate his staff there with which he was then to take over command in the Greek province of the Epirus, as soon as the anticipated capitulation of Italy would take place and the necessity would arise to have German troops move in to the areas previously occupied by the Italians. Scarcely arrived in Athens, Lanz got orders on 8 September 1943 from his Commander in Chief (Loehr) to transmit to the Italian Commander in Chief of the Italian troops in Greece, General Vecciarelli, the order for disarming and surrender of the Italian 11th Army. Now that was for Lanz an extremely difficult and unusual task; he had had nothing to with politics up to that time, an order of this kind was something absolutely new for him. Moreover he was only very superficially informed about relations in Athens and Greece; he did not even know what troops would be at his disposal in case of war. Therefore, Lanz begged General Loehr to spare him this mission. In vain; the order hold, that he (Lanz) had to bring over to General Vecciarelli the demand for capitulation. Lanz did this and went to Vecciarelli with the intention of negotiating with him on a basis and in a spirit intended to take into account the previous comradeship in arms and to respect the military honour of the Italian Army.
He was dumb-founded when Vecciarelli declined the demand and referred to the danger that the demand for complete disarmament of the Italian army might lead to bloody disputes. What was to be done? Lanz had come with the fixed idea of avoiding all blooshed. Veciarelli's aims were similar and he proposed to the German General that the Italian 11th Army would fight, from then onwards, at the side of the German Armed Forces until the situation cleared up. Lanz had no authority to agree to such a proposal; his instructions read immediate and complete surrender of arms. If he departed from it he was placing himself in opposition to the express order he had received from his own Commander in Chief. Lanz knew this order. However he saw the Italian General, too, who was fighting for the honour of his army.
The situation was very difficult for Lanz; he was aware of the consequences that direct contravention of his superior's instruction could entrail for him. A few mouths before he had not carried out in Russia an Order given him personally by Hitler so as to spare his men; for that reason he had been relieved and sent home and could still rejoice that this big-handedness had had no more tragic consequences for him. In Lanz, however, sympathy for the situation of the former companion in arms triumphed; he accepted the proposal of the Italian General and thought that, in so doing, he was performing a good deed that might satisfy both parties. He reserved to himself, at all events, the subsequent approval of his own Commander in Chief.
The latter, however, declined; he reprimanded General Lanz sharply because of his high-handedness and gave him the Order anew to demand from Vecciarelli immediate and complete surrender and laying down of arms. With a heavy heart, General Lanz went of view and together with Vecciarelli tried to find a way out which might still prevent a struggle between German and Italians while avoiding offense to Italian Military honour. Vecciarelli saw Lanz's conflict and he did not want a struggle either and, in the end, the two Generals agreed to this effect that indeed the surrender and disarmament was to follow, the latter, however, not immediately on a complete scale, but in 3 stages, so that in answer to Vecciarelli's requests the Italian troops were left their rifles, to start with, and their respect in the eyes of the Greek population was preserved.
Lanz came to this agreement, too, in the interest of good understanding with former companions in ars. By this agreement Lanz once more contravened an express of his military superiors, although he did not know how his Commander in Chief would interpret this. Lanz was happy when the latter finally declared his agreement however.
Then Lanz took over his command in the Epirus, conscious of the fact that he had performed a blessed deed by which he rendered a service to his fatherland. It entailed for himself, it is true, later severe disapprobation which resulted even in his disqualification as an Army Leader. His chivalrous behavior towards Vecciarelli and his services in the avoidance of all bloodshed was later branded as the expression of an "unstable disposition" and the point of view was adopted that such an officer was unsuited for employment as an Army General. Any Court, however, whether constituted of soldiers or civilians will value the behavior of General Lanz all the more highly and not see in it any lack of "severity", not a "refusal to take action in a specially difficult situation as suggested in that qualification, but, on the contrary, proof of a sense of responsibility and chivalrous disposition to an especially high degree even towards the highest superiors.
This "lack of severity" which, however, in reality was high civil courage, determined the behavior of General Lanz toe in the battles of Cephalonia and Corfu.
Throughout the Greek Mainland the surrender and laying down of arms agreed to between Lanz and Vecciarelli took place without friction without the need for shedding of a drop of blood. German troops moved into the areas previously occupied by the Italians, they were indusputably master of the situation, the German occupation of the Greek Mainland was carried out according to plan, the Italian 11th Army found itself on the move through the instrumentality of the German Armed Forces.
It is a fact, therefore, that all Italian Commanders and troops on the Greek Mainland regarded the Agreement between the Italian Commander in Chief and the German General as legally binding and complied with it correctly; nor can it be doubted that this conception was absolutely correct. The capitulation of the Commander of an Army is in accordance with international practice always binding for all Commanders and troops of this Army. If the Commander in Chief acts herein contrary to an order which he has received from his superior or his Government, then it is a matter for the Commander in Chief to answer for his possible highhandedness. It would, however, lead to insufferable consequences, if every single troop unit and every subordinate Commander could claim the right to decide independently whether the capitulation determined on and declared by the Army Commander in Chief was to be legally valid for the independent troop units. The practice in the Franco-Prussian War 1870/71, then that in the first World War and that of the second World War never left any doubt that capitulation of the Army Commander in Chief is legally binding, and so it was held to be in 1941 in Greece, too, when first of all the Greek Army capitulated in Thessaly and then in the Epirus. Not the Chief of Staff, not the Government, not the Ministry of War or the General Staff of the Army agreed to the capitulation, but always the Army Commander in Chief concerned.
It must, however, be emphatically established that the proceedings of this case have produced no proofs whatsoever that the Army Commander in Chief Vecciarelli, by his agreements with Lanz, might possibly have violated an order of the new Italian Government under Badoglio. He had obviously at the time of his negotiations with Lanz no contrary orders, for he would certainly have mentioned it at some time to Lanz; this same chivalrous attitude which Lanz displayed to him in these negotiations would have given him the assurance that Lanz would have completely understood such a higher order, if Vecciarelli had been able to refer to one, the Prosecution indeed too, although it had more than 2 years to prepare this trial, did not once make the assertion, let alone furnish proof of it, that a contrary order had gone to Vecciarelli from a higher authority.
At all events, it must be established that General Lanz acted in the best of good faith and unevitably was convinced that the capitulation of the Army Commander in Chief Vecciarelli was absolutely legally binding and that Vecciarelli had no contrary orders which had dictated something else. Above all, 2 facts are referred to here which will have to be evaluated in another connection, yet namely:
aa) upon the fact, that the "documentary evidence on the United States and Italy 1936-46" (submitted at the session of 25 August 1347) up to this trial was entirely unknown to General Lanz and that in September 1943 he had no knowledge of terms of the armistice which was concluded on 3 September 1943 between Italy and the Allies, and became effective on 8 September 1943. Obviously, General Vecciarelli did not know these terms either in September 1943, just as little as his subordinate, General Gandin. Add bb) the further fact that Italy, that is, the Italian Government Badoglio declared war on Germany not before 13 October 1943.
Therefore the Italians who in September 1943 in Greece fought against German troops and fell prisoner, were not soldiers of a hostile army at war with Germany. General Lanz, not even for one moment, had any doubts about this legal situation and he choose to deal with the Italians in a manner compatible with his soldierly conscience and sense of justice.
This his opinion, by the way, was shared by all Italian Commanders in Greece. They all considered the surrender of arms negotiated by Vecciarelli as their matter-of-course duty.
Only the Italian Division General Gandin, who commanded the troops on both western islands of Cephalonia and Corfu, refused the surrender and allowed fighting to ensue. General Lanz did all he could to avoid this struggle and to prevent any bloodshed.
On directive of General Lanz the German Island Commander Lieutenant Colonel Barg at first conducted negotiations with Gandin to achieve surrender. For days he (Gandin) stalled by making excuses of all kinds and finally he even had his troops open up fire against the German troops inflicting heavy losses. Upon that, some other commander certainly would have ordered his own troops into battle now. Lanz did not do that; He wanted to avoid bloodshed by all means and therefore, flew to Cephalonia himself. His aircraft too was shot at. Nevertheless, Lanz personally commenced negotiations with Gandin hoping to clear the tense situation peacefully. He succeeded to establish long distance connection with Gandin. The latter used also towards him the untrue excuse that he did not have "clear orders" from his superiors.
Lanz saw through this obstructionism, for all other Italian Commanders in Greece had received and carried out "clear orders" only Gandin found them to be unclear. Now he demanded a "clear order" of Lanz, he received same on 13 September 1943, and at the same time he promised to carry it.
But already during the following days Lanz had to realize that again Gandin had deceived him, that the latter only played for time and did not intend at all to carry out the order of the German General and the order of his own Italian Commander in Chief. Nevertheless, Lanz had his German Island Commander continue daylong negotiations with Gandin on the question of surrender, although the Army Group understandably urged with increasing rigour the final settlement of the case Cephalonia.
Gandin invented constantly new excuses; at one time i.e. he referred to alleged promises, which some German airforce officer was supposed to have made, which actually never had happened. Another time he claimed that his own officers would refuse to obey him. Still Lanz hesitated to use force to compel obedience by the Italian General. The latter even had his troops open up an unexpected attack upon the German troops in order to finish a German Battalion encircled in the northern part of the island, yes he even let it come to it that his own troops fired on 3 Italian Commanders who wanted to comply with the order of surrender by their superior Commander Vecciarelli and Gandin's order of 20 September 1943 proves that at the time the Italian General Gandin promised surrender of arms, he ordered his troops to commence hostilities against German troops with the express aim of "annihilating" them.
Ten days did Lanz wait in order to avoid bloodshed, he negotiated with Gandin with the greatest patience in order to turn his mind to the ordered surrender without fight. All in vain! Finally, after 10 days, General Lanz ordered his troops to storm Cephalonia, to beat the Italians in the northern part of the island and to liberate the German forces encircled there. General Lanz again flew to Cephalonia to learn the situation on the very spot. Still in the hope that he will be able to avoid a fight to the end, he himself threw down leaflets over the Italians to make them stop the senseless and illegal struggle. But again Gandin acted to the contrary. Instead of halting the fight at last, he dispatched new reserves to the front, ordered on 20 September 1943 further attacks against the German troops with the express aim to annihilate them. Therewith also the last hope died within General Lanz. At last - he had to order the attack; which began on 21 September 1943. The Italians were beaten and taken prisoner, thousands abandoned their weapons and ran over, after new losses had occurred on both sides, which General Lanz had endeavoured to avoid.
The blood of these fallen German and Italian soldiers cries out against General Gandin who by his treachery has caused these losses.
General Gandin himself was taken prisoner, he was interrogated by the German Island Commander and summoned before a German Court Martial, upon the sentence of which he and several of his officers were shot. The remaining officers and all of the Italian troops - several thousands of them - were transported to a prisoner-of-war camp.
The report to Higher Headquarters - to clear this up in advance - stated that "Gandin and all officers were shot". But there can be no doubt that this report was false, that is exaggerated and deliberately exaggerated, in order to give the impression "higher up", as if the Fuehrer-Orders demanding that all officers be shot, had been complied with to the full extent.
It is due to the same consideration if in the report of 24 September 1943 4,000 Italians are mentioned, which "fell and were shot". The troop, which by its soldierly sentiment wanted to spare the enemy and refused a mass blood bath, deliberately chose this ambiguous expression to satisfy Hitler and to avoid troublesome counter-questions regarding execution of the draconic Fuehrer Order. In fact, however, the sworn testimony of witnesses gave certain proof that no Italian was shot outside of battle and that only Gandin and those officers whose guilt in the mutiny had been proven and established beyond doubt were executed by court martial. All others were made prisoners of war, although as mutineers and franctireurs they were not entitled to it.
The development on the next island Korfu was similarly; there too the Italians, who also were under Gandin's command, suddenly on 13 September 1943 opened up fire; the Island Commander there together with several guilty officers was also executed by court martial, all others carted away.
b) These are the external facts established beyond doubt by the proceedings of this trial. The legal question now is this, did General Lanz render himself punishable by ordering a court martial investigation of the case which finally ended in the shooting of General Gandin and several of his officers found guilty.
1.) General Lanz refers to the fact that he only acted in carrying out two express Hitler Orders, which he received during his negotiations with Gandin: One order demanded the shooting of all Italians, without distinction, whether officer or private, whether guilty or not. Against this order he protested and demanded limitation of the order to those guilty. The second Hitler order indeed was considerably mitigated, by limiting the shooting to all officers. Also this second order he refused and again requested limitation to the guilty. To this second objection he received no further answer.
The Army group did not pass on this second appeal, fearing that it only would increase Hitler's rage about the obstructionist conduct of General Gandin and that an aggravation could have followed instead of a moderation. This the Army Group wanted to avoid, because it considered it as unjust to shoot the italian officers without consideration to the question of guilt in each individual case. Then he (Lanz himself) arbitrarily and upon his own responsibility ordered the Hitler order to be carried out only with respect to the guilty officers by ordering the examination of the case by "summary court".
These facts, which Lanz related and swore to, are also backed up by other evidence presented. The testimony of the witness Happ is especially valuable because he, as an officer on the staff of Major v. Hirschfeld, was an eye witness to the events that took place at that time.
Such a behavior corresponded with Lanz' whole attitude and with the way he chose to act in other cases. The humanity of Gen. Lanz thereby shown also fits in with the proved fact that Gen. Lanz hesitated no less than eight days in carrying out the ordered disarmament, and continuously kept up negotiations with Gandin, until he finally, on 16 September 1943 ordered the attack on the northern part of the island where the German troops had been encircled by the Italians and were in a dangerous position. If Lanz had been ready to execute the Hitler order blindly and without thought, it would not have mattered to him whether the surrender were voluntary and without losses, or whether it were forced in heavy combat with heavy and bloody losses.
We must therefore accept as an established fact that Gen. Lanz was only carrying out a Hitler order - but in an extremely ameliorated form, to be sure - when he issued the order to investigate the facts and to bring the guilty officers before a military court.
Did such a Hitler order have to be headed? Can Lanz point with success to such an order if, today, through retroactive consideration, the opinion should arise that for some reason or another the sentencing of the Italian officers might have been illegal after all?
The statute of this Court says that a defendant cannot claim an order by this superior as justification for a violation of international law, that such an order could at best be considered as an extenuating circumstance. But this case is somewhat different than that which the statute obviously had in mind: In this case Lanz did not receive an order from any other superior officer, but rather a definite order from Hitler; this man was Chief of State of the German Reich and at the same time the sole law maker and highest judge in the Third Reich, entirely free in his decisions, not bound to any law or regulations.
In judging the behavior of a soldier it should not be overlooked that Hitler was at the same time the Supreme Commander in Chief of all the German Armed Forces. Lanz, like every German soldier, had sworn his personal allegiances: "I swear by God this sacred oath, that I will give unconditional obedience to the Fuehrer of the German Reich and People, Adolf Hitler the Supreme Commander of the Armed Forces, and will be ready as a brave soldier, to strake my like at any time for this oath." The soldier considered this oath of allegiance as a personal trust. This is how it was in Germany, and it is interesting, for instance, that, in Cephalonia, General Gandin eventually fell back on his oath of allegiance to the king of Italy, when he refused to obey his Italian Commander-in-Chief. He presumably felt himself bound by his conscience, although he knew that his King had agreed to the establishment of Fascist leadership and had kept it in power for 25 years.
Gandin also knew that the war which his king waged against Greece and Albania had been a war of aggression, unsanctioned by international law. General Lanz also had a similar conflict of conscience in Sept. 1943 on Cephalonia, only with the difference that at that time the German general was in the right according to international law, while even the most benevolent verdict according to international law could not define the behavior of the Italian general as anything but insurrection.
For General Gandin had - and this cannot be emphasized enough - only one orders the order of his Commander in Chief to turn over his arms. And he acted contrary to this clear order, which was given him repeatedly!
On the other hand, the position of General Lanz at that time was much more difficult, especially because of the situation in Germany at that time: According to the law in the Third Reich and the conception of the law at that time, Hitler could sentence anyone he so desired to death, over the heads of all courts and without trial. To do this ho not only had the actual power as absolute dictator, but also the formal right according to law. And this almighty Hitler had, because he was infuriated over the disloyalty of Gandin, personally issued two precise orders, based on his own decisions, according to which all Italians, or, as the case may be, all Italians officers were to be shot.
In view of such orders and in consideration of the special circumstances of this case, Lanz contends that he would not have been liable to punishment, according to the law which was valid for him at the time, if he had actually carried out these Hitler orders. It was not, as has already been emphasized, an ordinary order of some superior or other, but rather the personal order of Hitler, given for a concrete reason, to cover one particular instance. The situation was thus, that it could be assumed with certainty that Hitler would take a personal interest in the exact execution of his orders and that he would ascertain through inquiry if they had been carried out, and that the non-execution of his order would not escape his notice in any case. Now, it can not be demanded of even a general today that, under threat of punishment, he should have risked his own life and freedom at that time; and this danger was very great.
For there are actually several cases we know where Hitler had German generals shot, or thrown into concentration camps or severely punished otherwise because they had not carried out the orders of their superiors- and it did not even have to be Hitler himself.
This danger was twice as great for a general like Lanz, who had already opposed a Fuehrer order several months before in Russia and had retreated with his troops instead of holding the front according to orders and sacrificing his troops uselessly. The courts of the Third Reich generally considered such conduct also as military cowardice before the enemy, which was punished with death and only with death. Over and above this, Lanz had, several days before the Cephalonia incident, namely in the negotiations with the Italian general Vecciarelli, again not carried out the orders of Hitler and his commander in Chief Loehr. In such an extraordinary situation even a general can appeal to the grounds excluding punishment due to necessity in section 54 of the German penal Code, which is recognized everywhere. This section reads: "An act does not constitute an offense if, apart from instances of self-defense, it was committed in a state of necessity in order to rescue the perpetrator or his relative from imminent danger to life or limb provided the necessity was caused through no fault of the actor and could not otherwise be averted."
Therefore, under the special circumstances of this case, one cannot, even if one generally takes the point of view of the statutes of this Court, deny the importance of the express Fuehrer order which had been issued for an exact, concrete incident, as grounds to exclude punishment, at least in this special case.
For if there had been an Allied landing at that time on Cephalonia and Corfu and if subsequently the Balkan front had collapsed, then Lanz would surely have been the first against whom Hitler would have applied section 92 of the German Military Penal Code, without any consideration and without any understanding for Lanz' motives.
Section 92 reads: "Whoever does not obey an official command and thereby purposely or through negligence causes considerable damage ...... or endangers the security of the Reich or the mobility of the troop, shall be..... punished, in such and such a manner.
If the act is committed in the field or if it is an aggravated case, the death penalty or imprisonment for life or for a period of time can be imposed."
Lanz himself, of course, didn't doubt for a minute that in this case only the death penalty would have awaited him. German law does not assume that the soldier should accept such a certain fate. He is pardoned by the "necessity" which is recognized by the law as grounds for excluding punishment. Furthermore, this viewpoint is not so foreign to American law as it is made out to be today for the purposes of the Nuernberg trials. So, for instance, the American defense attorney Milton Crock, appointed by the Court in the proceedings against the SS from the Nordhausen concentration camp, claimed in December 1947 that the defendants had to be acquitted because they had carried out the executions "on higher orders and under clear circumstances of compulsion".
2.) But for a different reason it is not necessary for Lanz to fallback on the state of necessity as understood in section 54 of the German Military Penal Code. For the use of a court martial to try the guilty officers was entirely correct, the verdict of the court martial was according to law, it was right that the Italian officers were shot; that is to day still the determined conviction of General Lanz.