"Reasonably no other conditions ought to be laid down as regards effective occupation in war than those under which in time of peace a Sovereign is able to assert his authority over a territory.............If, when the legal Sovereign is prevented from exercising his powers, the occupant is in the position to assert his authority and actually establishes an administration over a territory, it matters not with what means and in what ways his authority is exercised, if he only really keeps the territory concerned under control."
In the opening statement of the Prosecution you have already heard several indications about the conditions which the Germans established with regard to an actual occupation in Yugoslavia and Greece. You have, for example, heard that for the pacification of the civilian population, Serbia was divided into several field commands, which essentially corresponded to the larger cities and to the main strategic points in the country and that these field commands again were divided into smaller territorial units, which were called local commands. That was the organizational machinery used for the security of Serbia, the prosecution stated, and it became effective immediately if an act of sabotage had been committed. If you compare these facts with the demands made by Section 42 of the Hague Convention and by the # 276 of the American "Rules of Land Warfare" and in the above quoted sentences by Professor OPPENHEIM for an actual occupation, I believe from this alone the fact results: that the German occupation was actually effective. And if one has heard in the opening statement of the prosecution how the partisans, for example, in Croatia, acted during the first two years of the occupation; through surprise attacks on German guards or garrisons, and acts of sabotage against traffic installations, supply depots and munitions depots of the German Wehrmacht, already such side-lights give the picture of an effective occupation. It will be the job of the Defense to provide the court with detailed material in this respect, in order to show that an actual occupation had been estab lished in Yugoslavia and Greece after cessation of operations in April 1941.
In connection with the question of the combatants, I must also deal with the problem of the Italian fighting forces, which went over to the partisans and fought against German troops after the surrender of the Italian government to the allied forces on 8 September 1943. The Prosecution states, that it was one of the most illegal and dishonorable acts in the history of warfare, that the Italian officers of such units were shot to death. However, we have heard, that combatants, who did not have the status of legal combatants could be executed according to the laws of warfare and up to now it has never been considered illegal or dishonorable to execute persons, who had been sentenced to death for wartime treason. One may not only consider the fact, that men who wore a uniform were executed, but one must also investigate, what these men had done before they were sentenced to death.
By the surrender of the Italian government, the Italian state ceased to be an ally of the German Reich. There existed, first of all no state of war between Italy and Germany. Therefore, none of the Italian divisions had the right to fight German troops, and the Italian soldiers who did this could net claim the status of legal combatants. Disarming of the Italian armed forces was an absolute military necessity. Because three effective Italian armies in the Balkans were a very serious danger for the German armed forces, since they could have come to be an effective bridge-head for the Allies. It was known, for example, that Admiral Cambioni in Rhodes had already initiated negotiations with the British. In the case of war between Italy and Germany, which was considered a certainty, and if the Italian armed forces had not been disarmed, the Balkans could not have been held, because the Italian troops had occupied almost all the coasts. The right to disarm the Italian soldiers, primarily resulted from the fact, that "within the territory of operations of a combatant only legal combatants have the right to carry arms. I have show that the Italian troops no longer possessed the status of legal combatants after their government surrendered. The authority to disarm the Italians also resulted from the negotiations, which the German command authorities carried out with the Italian High Command in Athens and Tirana and on the basis of these, the Italian high command ordered its troops to deliver their arms without resistance and to let the Germans take them captive.
(The order of the Fuehrer distributed to the subordinate troops by the army groups, for the forwarding of which General Field Marschal von Weichs was held responsible, did not order that Italian officers were to be shot because they and their troops fought against the German armed forces without possessing the status of legal combatants, although this would have been in contravention to international law.)
I repeat again: "The order of the Fuehrer distributed to the subordinate troops by the army groups, for the forwarding of which Generalfeldmarshall von Weichs was held responsible, did not order that Italian officers were to be shot because they and their troops fought against the German armed forces without possessing the status of legal combatants, although this would have been in correspondence to international law.
Your Honor, I ask for a correction of the translation as I had the second half of the sentence. I said, "although this order would have corresponded with the rules of International Law, not contravention to international law.
What the order of the Fuehrer did decree, was, that Officers of those Italian units, who let arms fall into the hands of the insurgents or in any other way worked to ether with the insurgents, arc to be shot to death after they had been sentenced by court martial. Sentencing by a court presupposed a legal provision as basis for the punishment. In view of such clear facts, such as the turning over of arms to insurgents or supporting them, one docs not have to look very hard for such a legal provision. Just as t. c American provisions, which arc applicable in wartime the German provisions concerning warfare, also know the facts of wartime treason, which is punished by death. It was regulated in section 6 of the special Military Penal Code, and consisted of every kind of support to the enemy. It comprises the same fact as are enumerated in Articles 205 and 214 of the American Rules of Land Warfare.
Since here the unlawfulness of executing the Italian officers in spite of their wearing uniforms has been emphasized so much, I point out in particular Art. 205 subsection b of the American Rules of Land Warfare which states, that the American legal regulations on wartime treason within a territory under military control in general apply to persons of all classes without regard to nationality or military or civil status.
You have already heard from the Prosecution that at least two Italian divisions joined the partisans. The Defense will, within the framework of evidence, which it will submit to the Tribunal, produce more material about the behavior of these Italian units whose officers were called to account.
Among the Italian divisions that went over to the partisans and thus committed wartime treason was, above all, the "Bergamo" Division which from that time on called itself the "Garibaldi" Division. It has already been mentioned by the Prosecution in connection with the asserted shooting of a large number of officers of this division. General Gandin, who has likewise been quoted by the Prosecution had fought against the Germans although he and his troop were no longer entitled to the status of legal combattants. He had thus violated the agreements reached between the German and Italian high commands. Beyond that, he had committed a particularly serious act of treason by violating a special agreement which he had reached with the German commanding staffs with regard to his division He had declared himself willing to deliver up arms. When the German troops wanted to receive the arms he ordered that they be attacked. The Germans not being prepared for that suffered considerable losses. General Gandim and the officers who were responsible together with him were sentenced to death by a court martial formed by the competent German commander.
I must now say something with regard to Counts 2 and 4 charging the defendants with wanton destruction of enemy property, devastation of enemy territory and encroachments upon the freedom of the civilian population, above all, with interning tho population in concentration camps.
There is no doubt that only the willful destruction of towns, small towns and villages and only devastation not justified by military necessity can be war crimes. Thus it was expressed in Article 6 of the London Statutes in agreement with the standards of tho Hague Convention. As regards the internment of the civilian population in collective camps it must be noticed that quite obviously the freedom of the individual has intentionally not been included in tho fundamental rights of the civilian population to be respected by tho occupying power in Article 46 of the Hague Convention. The reason for this is apparently that tho security of tho occupation power has always necessitated very extensive encroachments upon the personal freedom of the civilian population in the occupied territory. A corresponding right of the occupation power has up to now never been contested.
It is very easy to declare with regard to a conquered nation that its troops willfuly destroyed enemy towns and villages and undertook devastations without military necessity. And it is very simple to designate the internment of parts of the civilian population in collective camps as war crime if it was carried out by the conquered state. Here the relativity of law is seen which I have already mentioned and I think it would be good to regard tho things with which the defendants are being charged in the light of historical precedents and the opinion of important authors on international law.
The American Professor Fenwick writes in his International Law already quoted:
"General devastation of property as a means of covering the retreat of an army has, however, been a common practice of belligerents.
"A more difficult problem is to determine how far tho destruction of enemy property is justified, not in connection with direct hostilities, but as a means of cutting off the enemy's lines of communication eliminating his subsequent sources of supply or intimidating tho civilian population and inducing it to bring pressure upon the government to sue for peace."
Professor Fenwick then states:
"In 1864 General Sherman devastated a wide area from Atlanta to the sea in pursuance of an interpretation of military necessity which included the objects above mentioned, and shortly afterwards the devastation of the Shenandoah-valley to the same end."
I insert here, when General Sherman had finished the devastation of the Shenandoah Valley, he said, and he said himself then, "crow flying over that territory had to bring its own provisions with it." That is according to the General's own statement. This quotation is quoted by "Spaight."
I now go on quoting Fenwick:
I quote again Fenwick:
"In 1901 tho British armies in South Africa interned tho civilian population in "concentration-camps", with the result of serious loss of life (for details Spaight,). At the same time the country was laid waste far and wide as a means of cutting off the supplies of the guerilla forces.
Professor Fenwick also stresses that Article 23 G of the Hague Convention which prohibits the destruction of enemy property, unless it be imperatively demanded by the necessities of war, leaves to the determination of the belligerent army the circumstances under which military necessity demands such measures.
THE PRESIDENT: May I interrupt? We will take our adjournment at this time, but before....Repeating, we will take our adjournment at this time, but before we adjourn I should like to ask the cooperation of counsel and the prosecution and Secretary General's office and marshal to check on the status of the translation and report to me shortly before we convene for the afternoon session.
The Tribunal will be in recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The Tribunal reconvened at 1335 hours.)
THE MARSHAL: Tribunal No. V is again in session.
THE PRESIDENT: You may proceed, Dr. Laternser.
DR. LATERNSER: Your Honor, shortly before the noon recess I had talked about the views of Professor Fenwick, regarding the question of destruction I am now quoting on page 52 on the top of page 52:
"Professor Fenwick also stresses that Article 23g of the Hague Convention, which prohibits the destruction of enemy property, unless it be imperatively demanded by the necessities of war, leaves to the determination of the belligerent army the circumstances under which military necessity demands such measures."
It continues on "You heard an unbiased American scientist and author on international law.
I now quote Professor Oppenheim". Oppenheim then continues:
"But the fact that a general devastation can be lawful must be admitted." (Vol. II, Art. 154) It continues:
"As regards captivity, the rule is, that private enemy persons may not be made prisoners of war. But this rule has exceptions conditioned by the carrying out of certain military operations, the safety of the armed forces, the order and tranquillity of occupied enemy territory---And even the whole population of a province may be imprisoned in case a levy en masse is threatening ....That in case of general devastation the peaceful population may be interned in so-called concentration camps, there is no doubt." (Vol. 11 Art. 116).
Oppenheim continues:
"The purpose of war may even oblige a belligerent to confine a population forcibly in concentration camps."
In the court of the following weeks you will hear more details about the reasons why the establishment of concentration camps (Sammellager)...
I have just heard the translation of "Sammellager" to the words "concentration camps", I would like you to change this to "collection camps" on page 52 and not concentration camps. On page 53 of the 2nd and 3rd line of the 2nd paragraph.
Your Honors, you will hear more details about the reasons why the establishment of collection camps, (Sammellager) and the internment of parts of the civilian population of the enemy in the Balkans was ordered and likewise facts will be submitted to you which indicate the necessity for and entitled the German troops to carry out devastations. As regards the collection camps, I wish to note that they must not be confused with the concentration camps in Germany, which were subordinated to the Gestapo and have becoma a by-word. They were collection camps, such as they were also maintained by the occupation powers in Germany under the name of internment camp and in this connection, I wish to point out that the conception of endangering the security of the occupation troops has been subject to an entirely new interpretation by the introduction of the so-called automatic arrest, an interpretation which up to the present was unknown in the practice of international law.
With regard to the destructions which were carried out by way of reprisals in order to force the civilian population of the enemy and the partisans to abstain from acts contrary to international law, I refer to Art.
358 e of the American Rules of Land Warfare which stipulates:
"Villages or houses, etc., may be burned for acts of hostility committed from them, where the guilty individuals cannot be identified, tried and punished."
I conclude my statements to this count with a statement by Professor Lauterpacht in his treatise in the British Year Book for International Law, 1944, page 74:
"Such acts as general devastation .. may supply ample reason for condemnation and protest; ....they may, at the end of the war, justify the imposition of collective sanctions by way of compensation or otherwise as distinguished from individual penalties of a criminal nature. But criminal proceedings before the municipal courts of the victor may seem to many a questionable method of removing outstanding doubts and laying down authoritatively the existing law on subjects of controversy.
Total war has altered the complexion of many a rule. At a time when the "scorched earth" policy, with regard to the belligerent's own territory, has become part of a widespread practice, general destruction of property ordered as an incident of broad military strategy will not properly form the subject-matter of a criminal indictment."
In the case of the measures with which the defendants here are being charged the principle of military necessity plays an important role. This principle, which formed the basis of all German military measures, was formulated in Article 4 of the American Rules of Land Warfare as the highest general principle of warfare and recognized to a very farreaching degree.
This principle, however, must not be scrutinized in an abstract manner, but must be considered in connection with the conditions with which the accused were confronted and under which they had to discharge their task, i.e. to secure the Balkans militarily. Nothing at all of what forms the subject of this trial can be understood if considered apart from the fundamentals, as is done by the prosecution. The decisive fact was the geographic character of this country and the peculiarity of character of the Balkan population which favored a partisan and resistance activity experienced nowhere else to such an extent.
I believe this to be the proper time to give the high court in brief a picture of the special conditions in which the defendants were placed in the Balkans.
Every appraisal of the military-political measures in the SouthEast area will remain incomplete and inadequate with regard to the actual conditions as long as it is not based on knowledge of the completely abnormal circumstances in occupied territory. No historian would be able to name a political area that could measure up to the Balkan area as far as the entanglement of the problems, the multiplicity of the political currents and the fanatic sullenness of the contracts are concerned.
1. This begins already with the split-up character of the country; nowhere else in Europe do we find in an area of about 1600 kilometers so many heterogeneous, tiny self-contained life-cells laid out by the geographic nature of the country. Whereas, for instance, the United States in an equal stretch of 1600 kilometers between Wisconsin and the Missisippi delta uniformly cultivate gigantic plains, a conglomeration of highly contrastly landscapes is to be found here in the Balkans. Every one of has its own individuality. They are littered around in a confused fashion, as though a child had emptied out a couple of big boxes of building blocks and the many-colored cubes now were mixed up in a completely disorderly way on the floor of the room.
The mountains have steep slopes. They often have remote dens and lonely mountain forests and thus offer welcome hiding-places and secret corners. Shepherds and farmers in distress retreat there as do highway robbers, Komitatschis and revolutionaries of many kinds. That has been going on for thousands of years and since the waves of the migration of peoples, since the great population upheaval that came about with the invasion of the Osmanians and since the nationality struggles of the 19th and 20th centuries.
Partly in consequence of the geographical disruption appears also a far-reaching disruption of communications, commerce and population.
Communications lack transcontinental lines laid out by nature, only the Morowa-Wardar-furrow in the East might have provided such a connection. But even that trails through territories which despite their moderately favorable conditions, as far as lines of communication are concerned, developed rather centripetally than centrifugally. Not even the Adriatic-Ionian seashore in the West remains as a natural line of communication since the course of the mountains condemns the sea to inefficacy. The mountains mostly run parallel to the coastline and thus deprive the ocean of its influence on tho interior. A very good map with a scale of 1:500 000 or even better of 1: 200 000 is needed in order to comprehend the splitting up of tho South-East into Slovenia, Croatia, Serbia, Montenegro, Albania and Greece.
Railroad construction has only underscored the geographic disruption splitting-up of tho lines of communications of tho Western Balkans. It is not necessary to get lost in the many details of the territorialpolitical-economic-historic and ethnico-cultural disruptions: It suffices to state that to date the Balkans are lacking an oven halfway efficient rail-raod communications system. The only trunk line of European importance, tho line Belgrade-Nisch with the extensions to Sofia-Istambul and Saloniki-Athens is single-track; several territories such as tho Peloponnesus have only narrow gauge tracks. Well-known mines have to content themselves with animals as a means of transportation and small cable cars.
Thus, in connection with all those facts always only small communication systems developed in tho Western Balkan penisula; therefore, also always only small economies and small isolated settlements. People live only in villages, small or medium size towns, and the only large cities such as Athens, Saloniki and Belgrade are on the periphery. Hand in hand with nature the historical development, in particular the agrarian tendency at the beginning of Osmanian rule, has contributed its share; it has driven the Christian population into the mountains and has led to small dispersed settlements in the secret corners up there.
This difficult territory had always made it possible to escape the authorities and combat them.
The Balkans show an amazing conglomeration of nationalities. An understandable variety if one considers how landscape and economic lines of communication are split-up. This ethnic division comprises Pomakes and Muhadschirs, Kutzowlachs and Croats, Greeks and Slovenes, Serbs and Macedonians, Bulgars and Makedoslaves", Sarkatsaneans, and Albanians, Turks and Armenians, Gypsies and others. Until the redistributions of 1912/13 and the great resettlement of 1923 all of these lived intermingled to an extent that the ethnological map of the Balkans looked like the tangled mess of threads of an overcolored carpet. And it partly looks that way even today.
One must realize how a military government is faced with unending difficulties on account of such an ethnic division, particularly since there is no perfectly correct diagram of the existing division. The few top scientists who can at all survey the conditions have come to the conclusion that all statistics, and that includes all old and new statistics of Balkan nationalities, show more or less great inaccuracies.
In the still undeterminated state of development hard and cruel battles occur about the nationality of the individual under the motto "if you don't choose to be my brother I am going to smash your skull".
We must imagine, though, that this struggle follows the forms of fighting in the cultural ways of Middle Europe or of the harmless skirmishes among the sects of the Anglo-Saxon area of culture. No, in the Balkans, from time immemorial all means are being used: Apart from pulpit addresses - be it in the Slav or Greek languages, apart from evening classes for adults and apart from all possibilities of fiscal policy, use is made of personal suspicions and, even in peace, of dagger and musket.
4. The result of such conditions are quite specific ways of life for the Balkans which are entirely different from those of the real European area of culture: different as far as their fervor, their impulsiveness are concerned, but also their sullenness and their cruelty. Always have there been all sorts of illegal fighters here and here especially; from the common highway robber to the fending sons and grandsons, from the religious fanatic to the gang leader and every kind of underground movement. Accordingly, it was quite normal that the Serbian kings died through assassinations. Europe, not to talk of the world, learned only little of what happened behind the mountain walls of the Balkans. In the seclusion of that part of the world revolts flared up again and again, and all efforts by the states, were unable to up subdue either the robberies or the cruel fight against and suppression of dissenters. What has not been said and written about the "Macedonian question"? Europe and the world shuddered when the scope of the Macedonian atrocities came to light and an International Commission published its report at the end of the Balkan Wars. Yet we must take into consideration the fact that the commission could only visit the localities that could easily be reached from the outside world and that the ruins of the remote hamlets and villages in the mountains remained unknown, ruins whose population for the most part had been murdered.
Under such conditions the war added new political and ideological groups to those already in existence. A wild battle of every group against the next one set in with all furor and the age old cruelty.
"In Greece, the revolting nationalist groups (Edes) under ZERVAS were in opposition to the communist movement of the E.A.M. and ELAS. The nationalist Cetniks in Yugoslavia under MIHAILOWITCH were the enemies of the Croatian Ustascha detachments, and the adversary of both of them was TITO, the leader of the communist bands.
Even the struggle against the outside enemy sometimes took second place in the efforts to finish off the political opponent in the own country.
With such conditions, however, the defendants had to cope; in the interest of the military tasks to be expected they had to establish tranquility and pacification in occupied countries, This military necessity alone required severest actions. It will be the task of the defense to show that the fight against the bands in the Balkans was dictated only by these military exigencies, but never-as is claimed by the prosecutionin execution of a plan for the weakening and decimation of the Balkan population.
When I now proceed to explain to the High Court the line that I propose to follow in the defense of the Field Marshals List and von Weishs which I represent I would like to state the following at the very outset with particular emphasis:
1. Both defendants were during the time of their Balkan activity, which will have to be illustrated in detail as far as scope, authority and responsibility are concerned, the highest strategic leaders. Thus, it was they who before all others were responsible to the Supreme Military Command for the execution and preparation of operational tasks.
This most important task within the scope of the entire conduct of the war had to and was to commit a secondary place all other tasks resulting from the occupation of a country.
For a field commander, such as wore Field Marshals List and von Weichs, actual warfare is the main thing once a war has broken out in consequence of a decision by the politicians.
All other tasks resulting from the occupation of the Balkan countries appear, within the scope of the strategic task that was assigned to my clients, to be of minor importance. These occupational tasks were transferred to territorial commanders for independent action, and their chain of command did not go through the strategic leader but through the Military Commander Southeast to the OKW. It follows quite naturally from the cooperation that is necessary for military command posts at the front that they inform one another whenever they are outside of the chain of commands. The fact that this principle was followed in itself explains the communication of the events that took place within the areas of the territorial commanders. On the whole they were bound to interest the strategical leader because they might be of importance connection with the initiating or carrying out of operational tasks. But this reporting of territorial events could in no case constitute a reason for establishing the competency or even tho responsibility of the strategic leader as the Prosecution is trying to do.
2. Concerning the knowledge of all the happenings which make up the contents of the indictment, the Prosecution seems to hold the opinion that the defendants represented by me had full knowledge of all happenings during their term of assignment. It is inferred that these happenings were in accordance with a plan designed to weaken and decimate the population of the Balkans:
Gentlemen of the Court. Field Marshal List and von Weichs learned about this plan for the first time through the Prosecution, as I am going to prove subsequently.
As to the actual extent of the knowledge of the defendants, however the Prosecution in a way is charged with the onus probandi. It has to produce evidence to this effect through introducing certain reports issued by military offices in the Balkans. Apart from the fact that it still remains incumbent on the Prosecution to prove the connection and the relevance of many of the submitted documents qs far as the defendants are concerned, the following circumstances ought not to be overlooked as easily happens in consequence of the documents being introduced according to purely chronological points of view and not to the proceedings of the case:
Generally, I maintain that the defendants represented by me can t h e o r e t i c a l l y have knowledge of the reports and the accounts only when they were addressed to their office and had actually been received by the same.
I say deliberately: t h e o r e t i c a l l y.
For in practice; Gentlemen, of the Court, you cannot presuppose even this amount of knowledge. A commander-in-chief, who does not receive incoming reports personally, will from these reports learn only the facts presented to him during the daily discussions with the officers of his staff. And this presentation is necessarily done with a view to the main tasks of a commander-in-chief, that means to the information that must be of interest to him in connection with his operational tasks. This makes the conclusion obvious that a commander in-chief in a certain theater of operations must be much more interested in the fact that his own troops have been assaulted than in the retaliatory measures which might have been ordered, and which, moreover, were subject to the competency of another command. As to these measures he could assume that they had been carried out in accordance with existing regulations, as long as no special facts which had a c t u a l l y been r e p o r t e d to him, gave him reason for a different conclusion.
For, after all, the appropriate quarters issuing the orders directing retaliatory measures had the same authority as a commander-in-chief of an army or an army corps.
When these important points of view are considered, it becomes quite obvious h o w t h e s i t u a t i o n a t t h a t t i m e m u s t a p p e a r to the defendants List and von Weichs represented by me.
Field Marshal Wilhelm L i s t, for whom I shall now present the defense in broad outline, was by no means a Nazi general as the prosecution is trying to make him appear, in complete misrepresentation of the real facts of the case. He was an unpolitical, especially efficient officer and army commander with a strictly Christian attitude. Towards National Socialism he had no sympathy at all; his premature separation from active service in the year 1942 is evidence of this.
His activity in the Balkans was only of brief duration. At that time he watched with anxiety the growth of the resistance movement which he in his capacity as chief of operations of the German forces in the Balkans was bound to prevent and combat.
That was his task and his duty and by no means a culpability.
a.) As evidence justifying Count 1 of the indictment the Prosecution presents above all the directives issued by Field Marshal List dated 5 September 1941, Exhibit 42.
I am going to prove that these directives had their origin only in consideration of military exigencies.
In this document murder of the civilian population is ordered with no word or sentence, which sircumstance solely could make it pertain to Count 1 of the Indictment.
Gentlemen, of the Court, I may ask you to read the document in full, instead of only the passage underlined by the Prosecution. You will then receive the impression that it is a question of directives serving the purpose of repressing insidious attacks by ambush.
A "pacification through terror" is nowhere mentioned.
Further I shall prove that the subsequent orders issued by subordinate quarters were based not on these directives of Field Marshal List, but on the order issued by the Supreme Command of the Wehrmacht dated 16 September, Exhibit 49.
b.) In no case did Field Marshal List order or allow the w a n t o n d e s t r u c t i o n of towns or villages, and only if this had happened could he be charged with Count 2 of the indictment.
c.) Concerning Count 3 of the indictment the Prosecution has not yet proved that the commissarial order Exhibit 13 (12b of the indictment) and the order issued by the Supreme Command of the Wehrmacht dated 23 July 1941, Exhibit 25 (12c of the indictment) were effective for the Balkan theater of operations, Murder of p r i s o n e r s of w a r, as alleged in 12 d, e, and f of the indictment, has not been proved by the Prosecution; it was here a question of reprisals in the course of which insurgents were killed.
d.) Concerning Count 4 of the Indictment I intended to prove that Field Marshal List only considered the internment justified of such persons as had participated in or supported the resistance movement. And to do so was his right and his duty.
Field Marshal von Weichs, by nature perhaps more a scholar than a soldier, also repudiated National Socialism aid its methods. He was a Catholic of profound devoutness, and for this reason he was never completely trusted by HITLER.
I have already brought to the attention of the Tribunal - and I still advocate the opinion - that Field Marshal von Weichs because of his physical condition is incapacitated for appearing in court. I base this opinion of mine
1.) on the export opinion of Dr. Riffard who confirms the danger of a sudden perilous complication as does also
2.) the American prison physician Dr. MARTIN who, it is true, subsequently considers this danger mo more certain to the same extent as in his report made on his own initiative and dated 29 July 1947.
In a short time I shall submit a new petition for examination since in the meantime a d d i t i o n a l symptoms of a severe illness have appeared.
Gentlemen of the Court:
At the beginning of the campaign in the year 1941 Field Marshal von Weichs was only for a brief period in the Balkans as commander-inchief of the 2. Army.
A.) Within this period (April 1941) the shooting, alleged by the Prosecution, of 100 Serbs in retaliation for the death of assaulted German soldiers took place.
I maintain that this shooting of 100 Serbs in a proclamation, still unproven, was only proclaimed as a threat but was never executed.
Neither did Field Marshal von Weichs within this period over issue an o r d e r according to which 100 Serbs would be shot in retaliation for every German soldier killed. The Prosecution had introduced no such o r d e r. The document submitted (Exhibit 7) is only a p r o c l a m a t i o n to the Servian population, t h r e a t e n i n g with shootings in this ratio only, in order to warn against assaults on German soldiers. This is a l l that so far has been p r o v e d concerning this count.
When at the end of August 1943 Field Marshal von Weichs was again transferred to the Balkans - this time as strategic leader - the situation in this theater of operations had become much more critical. In spite of this he used his influence only for the purpose of m i t i g a t i o n, as I am going to prove. His order dated 22 December 1943 (Exhibit 379) is evidence to this effect.