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.
Now we must refute the conception that the Italian officers who were caught on Cephalonia and on Corfu were "prisoners of war" in the meaning of the Geneva Convention. This conception is false of course. Because only he can be a German prisoner of war who is captured as the soldier of an army that up to that time has been in battle with Germany. Until the time of its capitulation (to the Allies) Italy was not the battle enemy of Germany, but rather its partner Later on, to be sure, Italy declared war on Germany. But, as is known, this only happened on 13 October 1943, that is, after the Cephalonia and Cerfu affairs. Before that time, (i.e. in September 1943) Italy was not in a state of war with Germany. The upper part of Italy, which remained under Mussolini and his government, was still allied with Germany. Southern and Central Italy, on the other hand, which was governed by Badoglio, had, in September 1943, the legal position of a neutral country in regard to Germany. Therefore it does not matter whether Gandin and his division regarded themselves at that time as soldiers of the King of Italy or as Fascist soldiers of Northern Italy under Mussolini. Gandin had always been considered before that time as a Mussolini follower, he had also made arrangements with Germany through which he intended to be the minister of war or the Commander in Chief in a new government of Mussolini's, and it was for this reason, mainly, that Hitler became do enraged against Gandin that he ordered the execution of all the Italians on Cephalonia. But even if Gendin had in the meantime left Mussolini's camp and joined up with Badoglio, he was not, in eith case, a soldier of a nation that was at war with Germany.
He was rather a soldier who, as a member of a country which was at that time still neutral, waged war against Germany on his own hook and responsibility. And he did this against the express order of his Italian Corps Commander who, through his Chief of Staff, had ordered him and the Italian Commander on Corfu to turn over their arms to Lanz, and above all, against the repeated orders of his Commander in Chief (Vecciarelli) in Athens, who had capitulated to Germany for the entire 11th Italian Army and whose promise to turn over the arms was also binding on General Gandin who was subordinate to him.
When General Gandin led his troops into battle against the German occupation force in September 1943, he did not do so as a soldier of a country at war with Germany, but he, as well as his entire division, were insurgents. Then, when he was captured, he did not become a "prisoner of war" as understood by the Geneva Convention, but he was and remained an insurgent in the hands of the German Armed Forces, and as such he could be convicted by German Courts; if the German law offered the opportunity for this, i.e. if the German law punished the combat activities of Gandin against the German troops as a crime. Herein he could not claim the protection of the Geneva Convention but found himself in the same position as, for instance, the Greek partisans today, who in case of capture are also sentenced and shot, and nobody even thinks about treating then according to the provisions of the Geneva Convention.
In this case it really does not matter whether, as the Prosecution claims, Gandin had received other orders from Badoglio or from the Italian King at that time. For, as has already been mentioned, the Italy of the King was also not then at war with Germany and the combat operations of Gandin against the German occupation forces in Greece would not cease to be unlawful, they would still remain violations of international law, even if the King of Italy or Badoglio had agreed to or even ordered them.
For Cephalonia and Corfu are not parts of Italy, but belong rather to Greece, they were foreign territory for the Italians, which was moreover under the actual rule of the German occupation force. Italian troops which started to fight against German occupation units there could not be anything else but insurgents, whose acts were punishable by death according to German law.
But the fact deserves consideration that General Gandin himself never claimed to have received orders to the contrary from the King of Italy or from Badoglio; see the statement of the witness Hepp, who was present at General Gandin's hearing, and neither did Vecciarelli in Athens receive orders to the contrary from Rome and when the Italian Corps Commander in Joannina himself sent his Chief of Staff to Corfu to induce General Gandin, who was his immediate subordinate, to give up that senseless resistance, at that time Gandin still know nothing of such contradictory orders from Rome, so far as the Italian Chief of Staff knew; he claimed only, in the presence of the witness Hepp, that he and his officers had revolted against the surrender orders of General Vecciarelli - an excuse which was correct only in regard to a small number of his officers. If General Gandin had really received orders to the contrary from Rome, orders which forbade the surrender of the island to the Germans, the Prosecution would have brought proof of this long ago.
In Italy, there are numerous officers of the Division GANDIN who participated in the combats and negotiations on Kophalonia and Korfu at that time and surely would have been summoned as witnesses had they been able to testify against LANZ. The prosecuting authorities have also at their disposal the archives of the Italian government and the Italian Armed Forces which would contain such contrary orders had they been issued. One did readily find the German orders and others documents necessary to have a case against LANZ. Far easier would it have been to obtain in Italy the Italian orders and reports and they would have surely been introduced if they would incriminate General Lanz and the German Armed Forces. The fact that nothing of all this happened speaks in favor of General Lanz and justifies readily the supposition that in truth General Gandin had only the order of his Commander-in-Chief, General Vecciarelli, to surrender arms to the German troops, but that he, most likely, because of the then existing conditions in Italy, perhaps was not sure, himself, if the abovementioned order by his Commander-in-Chief (VECCIARELLI) was competent for him, and that he, therefore, wanted to gain time in order to find out which in truth was his authorized government, Mussolini or the Italian King and Marshall BADOGLIO.
Most likely, he hoped that the Allies would soon land on Kephalonia and Korfu and initiated, therefore, on his own hook the combat with the German troops stationed there in order to hold the islands to provide a starting point for an Allied invasion of Greece.
This concept receives, by the way, additional support in the book ("The United States and Italy, 1936 - 1946, Documentary Records"). This book shows up the following facts relevant to the GANDIN- LANZ case: On 3 September 1943, the armistice between Italy and the Allies was concluded, on 8 September, it went into force and was now, finally, published; by the terms of the armistice it was agreed that; and I quote: "the Italian forces were to be withdrawn immediately from every activity in the present struggle and from all territories in which they were now deployed," The Italian Government assumed the guaranty that they, if necessary, would employ all the forces at their disposition "to insure an immediate and faithful observation of all the terms of this Armistice". This rendered it quite clear that the Italian Army was to remain neutral in the struggle between Germany and the Allies and that they were to cease fighting.
This standpoint was again emphasized in the "Implementation of the Armistice Treaty with Italy" which, on 29 September 1943, in the sub-section in question, again stressed: and I quote: "Italy's participation in the war is to cease immediately in all theatres of operations." General GANDIN, himself, never maintained that he received, for instance from Allied quarters, any order to the contrary; this, surely, would be most improbable, anyhow, for then the Italian High Commander in Athens would surely have received similar orders.
It is, therefore, needless to examine what legal significance, if any, such an order from Allied quarters to individual Italian Generals would have had. Regarding the relation to the former Allies of Italy, Section 25 of this Armistice Treaty determines: "The Relations to countries in a state of war with any of the Allied Nations, or occupied by such a country, must be severed". There is not a single word which could be construed as ordering the Italian Government or the Italian Forces or as granting them the right to resume hostilities against their former allies. This was omitted with good reason: One preferred to install an intermediate stage of Italian neutrality, in order to give the Italian forces a chance to sever their contact with the German troops their former allies, Not until 13 October 1943, that is weeks after the case of Kephalonia and Korfu was settled, did the King of Italy declare war on Germany. All this shows quite clearly that GANDIN had no orders at all, neither from his government, nor his King, to fight against the German occupation forces on Kephalonia and Korfu, much less did he have such orders from the Allied High Command. Therefore, he acted like an armed insurgent in the sense of International Law.
In a legal and moral appreciation of General LANZ' behaviour in the GANDHI case, to be just the following point of view must also be called to attention: Had General GANDIN, at that time, but once invoked an alleged order from Rome, as now is suggested by way of supposition, then surely a General LANZ would have been the last not to have sympathy for the difficult position of his adversary. LANZ, then, would not have thought of putting his adversary before a summary court after his capture. Rather would it have been a matter of course for LANZ to treat his captured foe in the manner befitting a prisoner of war, be he such or not, in a strict legal sense. Therefore, it must be held that GANDIN became a victim of his own deceitfulness.
He did negotiate with LANZ, only to gain time: he had repeatedly promised surrend of his men and arms; he had requested and received from LANZ a clear-cut order and had promised to live up to it. And in truth, he then gave orders to shoot at the German troops and ordered his regiments to "annihilate" the Germans! That was not the honorable behavior of a general who claims the right to be estimated a fair adversary. Against the resultant conclusion that GANDIN and his troops deserved to be treated as insurgents, and not as "prisoners of war", was brought the argument that the OKW order of 15 September 1943 had designated those Italians who did not decide to continue the fight in unisor with their former comrades in arms, as prisoners of war.
Then, Your Honors, in my further statements on the next pages I have shown that this order of the OKW is full of contradictions, that even the highest officials of the Wehrmacht Advocates Department have interpreted this order in various ways, and that a man like defendant Lanz who is absolutely a layman in legal matters cannot be expected to have more knowledge in legal matters than the highest officials of the Judge Advocate Department of the Wehrmacht. I would please since to recommend my statements to the judicial notice of the Court since various points of view show up clearly that these Italians were not to be treated as prisoners of war within the meaning of the Geneva Convention.
Then on page 98 and 99 I pointed out that also the Geneva Convention itself recognizes as prisoners of war only such soldiers who belong to an armed force who up to that time had been in combat with the armed forces of another country and this was not the case in the relationship between Germany and Italy.
I shall continue reading on page 99 in the middle.
Under these circumstances, Lanz was fully justified in treating the captured Italians as insurgents. Most likely, any other Armed force would have done the same. One suppose the case that soldiers of the former German Armed Forces or the former Waffen SS would get together to form a regiment, would again all dress in like uniforms, would resume their former arms, would assemble under unified command in the Bavarian Alps and launch from there a private war against the American occupation forces in Bavaria. Would anybody seriously believe that such people, after being made American prisoners, would be treated as "prisoners of war", according to the rules of the Geneva Convention, by the American troops? Nobody would expect that, and no nation would be willing to act as a protecting power for such rebels. Rather would nobody hesitate to apply in this case the provisions of Oppenheim, International Law, who says about this problem: "Private persons, taking up arms and committing hostile acts against the enemy cannot expect the rights applying to members of the Armed Forces, and the enemy has, according to a generally practiced regulation by International Law, the right to consider such persons as war criminals and to punish them. Armed hostilities committed by private persons are war crimes, not because they constitute in reality violations of acknowledged rules of warfare, but because the enemy has the right to consider them as acts of an unlawful conduct of war and to punish them as such. The conflict between praiseworthy patriotism on the part of such "private persons" and the security of enemy troops does not permit it of a solution".
The only question remaining would be if such men, as insurgents overpowered in combat, are entitled to legal proceedings, or if they, by the customs of war, are to be put against a wall and to be shot without benefit of a court judgment.
This questions confronted General Lanz, too, when, in September 1943, he received the Fuehrer order and the order of the Army Group, by which the Italians were to be "summarily" shot.
It cannot be doubted that Hitler meant shooting by the customs of war. The formulation of the order speaks for itself in this respect, i.e., its wording, and this is quite clearly shown in the letter of the Armed Forces Legal Section, attached to the OKW, dated 30 September 1943.
Lanz took no longer any part in the further progress of the Italian affair, namely the proceedings before the Summary Court itself and in the execution of the sentence. He is therefore also not legally responsible for this any more. But may I as a precaution point out the following about the legal position at that time according to German law:
I have then explained this summary shooting and the shooting after legal proceedings. I have explained that in the next pages and have shown that Lanz did not carry out the Hitler order according to which Hitler obviously thought of a shooting without legal proceedings despite the fact that pressure was brought from above but on the contrary that Lanz insisted upon an orderly proceeding according to courts-martial law.
Soldiers were as a rule subject to the jurisdiction of court martials. But in exceptional cases those were replaced by "military Summary Courts". These Summary Courts are naturally not to be compared to American drum head court martials which according to statements made by the Prosecution were only sort of disciplinary courts and only empowered to pass sentence in the case of petty offenses. The Summary Courts (Standgerichte) of the German Military War Laws, were legal Military Courts intended for exceptional cases and only competent for the most serious crimes. Their sentence could only be capital punishment or acquittal or it could turn over the case to the regular court martial. "Summary Courts" were legal according to German Military War Law by virtue of Sec. 13 a of the Decree Relating to Criminal Procedure in time of War, dated 17 August 1938, for the trial of any criminal act and I quote: "the trial of which did for cogent reasons not allow of any delay." Prerequisite for the appointment of a Summary Court was in addition, that a "judicial authority -- as a rule the Division Commander -- could not be reached right away". Such a Summary Court be appointed by "the commander of a regiment or a troop commander with the same disciplinary powers, nearest to be reached". This judiciary authority of the Summary Court determined also the composition of the courts and this at his own discretion, considering the special given conditions.
It was only compulsory that the trial had to take place before 3 judges. Although the law provided additionally for normal cases, that one judicial military officer and two assistant judges were to be appointed to the court martials, due to the scarcity of judicial military officials, an officer in the rank of a colonel could also be appointed as chairman. For proceedings against Generals it was prescribed as a rule, that the Reich Court Martial was competent. But as this ruling was also not of a binding nature, Generals could also be placed before a "Summary Court" (Standgericht) if the conditions of it were present. In a case of this kind also the Summary Court called by a regimental commander was competent. Sentences of court martials could finally only be executed after they had been confirmed, The Fuehrer and Reich Chancellor had to confirm the death sentence imposed on officers. According to the OKW decree dated 18 October 1940 in regard to the Fuehrer's right of confirmation against foreign officers, the Fuehrer (Adolf Hitler) reserved for himself the right to forego his right of confirmation in individual cases. In the repeatedly mentioned Fuehrer order according to which all Italian officers were to be shot, Hitler has undoubtedly expressed this renunciation. For if Hitler did not order these Italian officers to be placed before a court martial but ordered their immediate execution by shooting and this by a categorical order which was absolutely clear and beyond doubt he had thereby already decided, that he as the supreme judiciary authority of the German army, did not intend to make use of his powers to grant a pardon. Hitler had even gone still further in his order: He had ordered their summary execution by shooting (standgerichtliche Erschiessung), therefore an execution of the Italian officers without any court procedure and without any sentence.
Confirmation of a sentence of a Court did not even come under consideration in the meaning of this conception in a case of this kind, for according to Hitler's clearly expressed intentions, no sentence should be imposed which was liable to confirmation or annulment.
Only for reasons of completeness the following may be mentioned regarding the rulings on these questions in the German Military Law of that time: In Par. 77, Section III of the Decree Relating to Criminal Procedures, in War Time in the special case of guerillas, the special without regulations had been made, that sentences against guerillas could, without subsequent review by the judiciary authorities, be declared as final by unanimous decision of the judicial authorities if the execution brooked no delay for military reasons; if those conditions were present, the sentence need not be first submitted to the Fuehrer (Hitler) in such a case for confirmation, even if it was directed against officers. A unanimous decision for the complementation of the sentence by the Summary Court was sufficient for the immediate execution of the sentence. So far the legal provisions of the German Military Penal Law which are here restated in their context to facilitate the decision of the case by a foreign Tribunal. The German General Lanz and I would like to add that in the previous pages of my plea I have always cited the provisions in the field laws which correspond to my statement, naturally had to comply with these provisions. No attempt should be made to examine whether this regulation of the German law was expedient and whether it was in accordance with the text of American Military Law and practice or with the point of view taken by the American Army. For General Lanz, as a German General, could naturally only apply German law as he did not know foreign law, just as much as for instance an Allied General during the war naturally only applied the law of his own country never asking what the German law might prescribe in a concrete case. Of decisive importance is rather only and alone whether this ruling corresponded to German law and whether in the case of Gandia, action was taken according to this ruling.