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.
Both questions are to be answered in the affirmative, General Lanz then entrusted the regimental commander von Hirschfeld with the investigation and the settlement of the matter; this man -- as regimental commander and island commander --- was the judicial authority in charge and therefore authorized to convoke the Summary Court.
Greece and the islands of Kephalonia and Korau belonging to it, were at that time German occupied territory, the whole Italian 11th Army under the command of Vecchiarelli had capitulated to the German troops and surrendered their arms. It had thereby lost its capacity as an occupying force legally and in facto. Greece was under the authority of the German occupying forces and General Gandin was, as long as he remained on Greek territory, subject to German jurisdiction. His actions constituted the fact of mutiny and treason in times of war. For the respective rules of the law state under section 103 of the Military Penal Code dated 10 October 1940 and I please ask the court to take notice of the following paragraphs and I shall continue with the last paragraph on p. 108.
Now I have tried to inform myself in regard to all these difficult as well as complicated questions of law by questioning the former highest military judicial authority, the Chief of the German Army Legal Department about his point of view in regard to these problems of law. But he too was unable to form for himself a clear cut view in regard to the exceptionally complicated legal question in the conferences I held with him for hours; he reiterated time and again, that complicated situations of that kind had formerly hardly ever occurred. In any case, he knew of no similar previous case apt to serve as a precedent in pointing to a decision of this case Lanz Gandin. The Chief of the former German Army Legal Department assured me, that despite days of meditation on this subject, he was unable to reach a decision as to what decision he himself would have arrived at in a case of that kind.
He said, that the difficulties in regard to the legal situation of that time had been even more aggravated by the fact, that probably neither General Gandin nor General Lanz were in any way even aware of what was actually going on in Italy and which government was really to be considered as the legitimate Italian government. Both of the Generals could, as one could suppose without any doubt, in the main base their judgment only on what happened in their own actual sphere. Italy had in any case not declared war on Germany yet, but had combined herself to a capitulation towards the Allies. The Commander in Chief Vecchiarelli had as far as he was concerned capitulated to the German troops. It could really not be presumed that he had any order to the contrary by Badoglio or the Italian King; for otherwise he would not have declared his capitulation to General Lanz.
Now, Your Honor, that is the statement of the experienced legal chief of the law department at the German OKW. But Lanz, the layman, was supposed to solve this question. He did not have weeks and months for consideration and examination, he had to reach his decision immediately, from one hour to the next, anyway before the catastrophe of the hourly expected and feared landing of the Allies would occur. He made his decision, and his conscience was witness to the fact that he decided rightly and that he acted fairly and justly.
Legal consideration of the Gandin case comes therefore in summarizing to the conclusion: General Gandin and his officer accomplices were justly condemned to death and shot by a German Summary Court for "mutiny" and "war treason". They suffered thereby just punishment for their disobedience of orders by their Italian Commander-in-Chief and for their revolt against the German occupation forces in Greece.
If any doubts were still persistent in regard to the Gandin case after the Prosecution concluded its argumentation, then they were dispelled entirely by the argumentation of the defense.
This case-inchief was exceptionally difficult, for the OKW had ordered the Fuehrer orders and the entire correspondence thereto destroyed and this was accomplished by a Staff officer of the 22nd Army Corps. But due to fortunate circumstances some references to the Fuehrer orders was preserved in the War Diary of the 22nd Mountain Army Corps. These Fuehrer orders have also been proved by the Hepp testimony. This witness had served as a reserve officer on the staff of the Major von Hirschfeld, he was a witness to the events of that time; he received and read the orders himself which Major von Hirschfeld received directly from the radio station of the OKW while by passing Corps Commander Lanz. He was also present at the conferences between Lanz and von Hirschfeld at that time and he was a witness to the interrogation of the captured General Gandin by Major von Hirschfeld.
Saved by chance was also the order requested by the Italian General Gandin from Lanz, received by him on 13 September 1943. One may argue about the legal importance of this order and debate as to what legal consequences arose from the fact that the Italian General subordinated himself thereby to the German Commander. The former Chief of the German Army Law Department for instance specified his point of view in this respect: Such a case had never come to his attention, so he knew also in this case no precedent; his personal opinion of this occurrence would be to the effect, that the Italian General tried to demonstrate thereby that he was now subordinate to the German Commander. Whether the Italian General had been in any way aware of the legal position and what importance Gandin had attached to his request for a distinct order, would naturally be beyond his knowledge; but he would have, if he had been German Commander, taken the request of the Italian General as meaning that this man intended to place himself thereby under his command of the German Commander and the consequence of this would have been, that he (Gandin) would have made himself punishable in any case, if he ordered his troops to fight the German troops in spite of this.
But this order of 13 September 1943 proves in its actual relations with certainty, that the entire description given by General Lanz in regard to the events on Cephalonia and Corfu is true. According to statements made by the witness Hepp (Doc. Book Lanz VIII, Doc. No. 194, Exh. No. 101, Page 4) who was personally present during the interrogation of General Gandin by von Hirschfeld, there is no doubt about the fact, that Gandin did not by any chance receive orders to the contrary by Gadoglio or the King of Italy, but that this was entirely an arbitrary act of Gandin in opposition to the distinct and repeated orders of his Italian Commander in Chief Vecchiarelli, despite the fact that also his Italian Corps Commander had enjoined this order upon him by his Chief of Staff whom he sent personally to him. Gandin did not fall victim to contradicting orders, but became a mutineer due to the fact that he could not see his way clear in the then so confused times in Italy, his obvious inability to get in contact with Badoglio and his belief, for some reasons unable to be now ascertained, to be able to act contrary to the orders of his Commander in Chief Vecchiarelli. This clear result of the evidence in the case of Cephalonia and Corfu established for General Lanz a justification for his actions at the time before the law and his own conscience.
He found himself then faced with a much more difficult conflict then his Italian opponent: The latter had clear orders; it was his right and duty to lay down arms, as his commander in Chief Vecckiarelli had ordered him. He saw a straight path before him if he met his opponent frankly and honourably. By the correct execution of the order which he had received, he needed to sacrifice no thousands of brave soldiers. The situation of General Lanz was otherwise: He had from the highest authority the unmistakable order, to have all Italians shot without judicial sentence without pardon. Twice he refused to carry out this order although he was clear about the tragic consequences that this disobedience might have. For his delay might have entailed catastrophe for the German Army in the Balkans, if the enemy acted, and one can easily imagine how such an unrestrained tyrant as Hitler was, would, in such a case, have stormed against the General who had already previously treated Hitler Orders with contempt thereby arousing his keenest disapproval.
The hearing of witnesses by the Defense has however proved a further fact for the case Cephalonia and Corfu which must also be of greatest importance for the proper (rechtliche) judgment. In view of the statement of the witness Hepp that Major v. Hirschfield did not in truth carry out the proceedings by summary court against Gandin and the guilty officers on the basis of an order received from Lanz but on the basis of Hitler Orders. which Hirschfeld had received directly over the OKW-radio. Had Lanz not flown to Cephalonia, had he not negotiated with Hirschfeld, had he given the latter no instructions at all-General Gandin and his Officers would have been shot in spite of this. For Major v. Hirschfeld was ordered directly by Hitler and General Lanz's intervention had in reality merely the significance of limiting a Draconic Order of Hitlers to a minimum, which, in view of Gandin's serious lapse and taking into account the generally dangerous situation, could no longer be avoided, it is true. I would like to add here that the intervention of General Lanz shows the effect that the whole action against Gandin and his officers was guaranteed by Court Marshal proceedings.
Right from the start it was General Lanz's main task to prevent a landing by Allied Forces on the West Coast of tho Pireus and the Islands lying off it. The task given to General Lanz was of the utmost importance for the German Armed Forces; because if such a landing succeeded then the flank of the whole German Balkan Front was torn open, the German Divisions in the Balkans would have been cut off thereby, the German East Front rocked. Lanz was perfectly clear about the significance of his task. The position now became menacingly more acute on account of the resistance of General Gandin on the Islands Cephalonia and Corfu specially important from a strategic point of view; they were a base created by nature for an Allied landing, especially as the Allies were in command of lower Italy hardly 100 km. away. If the landing was attempted then it would find the natural support of Gandin's troops on both Islands. These Italian troops, in the event of an Allied landing and with their help, would have been in a position, without further ado, to overpower the German Occupation Forces on the Islands. Already for months an attempted Allied landing had been counted on on the part of the Germans. The removal of Mullolini and his replacement by Marshal Badoglio who had surrendered to the Allies made the danger of a landing imminent, it might take place any day and then the German troops, much too weak to face the Allies, would have been hopelessly crushed.
In such a dangerous situation the supreme command for a responsible troop commander is: "Act, act quickly, before it is too late". Not in vain did the old German Field Service Instruction which had become part and parcel of a soldier like Lanz, enjoin him. "O m i s s i o n s a n d d e l a y s i n c r i m i n a t e c o m m a n d e r s o f e ve r y r a n k m o r e t h a n a n e r r o r i n t h e c h o i c e o f e x p e d i e n t". In the "Duties of the German Soldier" Field Marshal Reichspraesident von Hindenburg had said solemnly to every German soldier on 25 May 1934, "The highest soldierly virtue is fighting courage.
It demands severity and resolve. Cowardice is disgraceful, hesitancy unsoldierly".
(No. 3); in No. 4 Hindenburg had declared "soldierly leadership depends on joyousness of responsibility". American Military Law has indeed understanding for this point of view. Art. 75 of American Articles of War of the year 1943 threatens likewise with the death penalty or another penalty to be pronounced by the Court Martial the soldier by disobedience or carelessness endangers the security of a fortified place......or any other command, which it is his duty to defend". Lanz in such a situation could not shut his eyes to the importance of his task. He was conscious of the fact: At this moment he could not fail. The enemy landing must be warded off in all circumstances otherwise he would perhaps have been responsible for the collapse of the whole Balkan Front with all its unforeseeable consequences. The main danger in this situation was "Gandin".
In such a situation this officer who had never concerned himself with legal problems was now confronted with the most difficult legal problem imaginable, a legal question for which there was no precedent that might have shown the way out of this labyrinth of most difficult problems.
Lanz stood along without the counsel of jurists who -- perhaps -- might have had so much experience at least that it would have been possible to go at any rate half-way towards solving this problem. He could not delay any longer, besides 10 precious days had already been spent to no purpose for a situation which could have even settled according to Hitler's intention in 24 or 48 hours. Lanz had to act, for he had already waited too long to avoid shedding blood. And he acted finally, not according to paragraphs, which would not have thrown any light on these legal questions which had arisen and on which perhaps he would have heard the most varied opinions even if he had been able to hear skilled and experienced legal experts (Fachjuristen) on this subject, Lanz acted in accordance with his military perception, in accordance with his innate and acquired sense of justice.
As a soldier holding a position of entire responsibility he saw himself faced with an enormously difficult situation and he was certain he could act as he wished, he always ran the risk of making a mistake; and as a soldier he decided on that solution which he certainly could not advocate in face of the clear order of his War-Lord but which he could advocate before his soldierly and human conscience.
True, he could have taken refuge in cowardice, he could have reported sick and left his post to avoid responsibility. He did not do that. Because he had to count on the carrying out of the strict Hitler Order by a successor appointed by Hitler who might have had all Italians including General Gandin and his officers who were also guilty shot.
Lanz - that remains his undisputed merit - by holding out while aware of his responsibility, saved a round 15,000 Italians.
In the following statements, Your Honor, which I do not wish to read at this point, I comment upon several smaller points of the indictment; the intervention of General Lanz upon the part of the civilian population which I describe in brief, and on page 115 on which I omit my concluding sentences, about the middle, it goes on. It is page 115, the end of the sentence of the first paragraph.
General Gandin alone bears responsibility for the struggles on Cephalonia and Corfu. Lanz did his utmost as has been proved to avoid hostilities. Therefore no guilt is his.
General Lanz was, by all means, kindly disposed towards and ready to help the inhabitants of the occupied country.
This is then described in this paragraph, and I shall leave the paragraph out and deal with the last paragraph on page 115.
General Lanz was neither a submissive National-Socialist, nor a soldier who was a slave to Nazism, still much less a hard-hearted or brutal man. On the contrary he was depicted here generally as a man of sensitive nature with the attitude of a convinced christian and with an alert conscience. He always tried to preserve for himself a certain independence where the national socialist Dictator was concerned and, in doing so, repeatedly went further than one could at that time demand of an officer. And today he is supposed to be a "War Criminal". Listen to the voice of the neutral foreign country on this; the Swiss delegate of the International Red Cross, von Bickel, who through the whole period saw, with his own eyes, the activity of General Lanz in the Epirus and who today too, although Lanz is accused here, stands before him to protect him against unjust attacks. He confirms what the Bishop of Joannina already said in the Autumn of 1944 when the German troops withdrew from the Epirus: "Lanz is no war-criminal".
In the 2½ years of the preparation and carrying out of this trial the Prosecution has not found a single witness who could have said something against Lanz or accused him of a dishonest action. On the contrary we have heard here the sworn statements of a great number of witnesses who, without exception, interceded in favor of Lanz although he is accused here; all of them could and had to confirm exemplary disposition and attitude in his case. And yet the number of these witnesses is insignificantly small in comparison with the round 15,000 Italian soldiers whose lives he saved on Cephalonia and Corfu by risking his own person and disregarding Hitlers Orders.
These 15,000 Italians who today in Italy rejoice to be alive, their mothers, their wives, their children, they are truly the best witnesses for General Lanz who saved their lifers happiness for them while risking his own.
The Mayor of Joannina assured General Lanz for all time of the hospitality of the grateful town when the German troops went away. The Bishop Opiridonos of Joannina has solemnly blessed General Lanz before all the people. The Prosecutor nevertheless has brought General Lanz before the Court. But you as judges will acquit him.