A No, I am sure there were orders by other people than Hitler who were equally couched in extremely strong terms. I can tell you that I myself issued orders couched in an extremely strong language whenever there were situations where the question was to be or not to be. Then of course I did have to issue strong orders in order to, from a psychological point of view, have any effect on the subordinates so that they would bear up in these hard times. In a situation which might face a division at a given time - that is to say, in the winter battle in Russia in 1941-1942 - it is impossible to imagine and that you can overcome these situations with anything but extreme harshness against yourself and everybody else. It should go without saying that in these situations harsh worded orders had to be issued.
Q I realize that, witness. May I once more ask you to go back to this Keitel directive NOKW-258 in Document Book II on page 67. I have only one more question in connection with this particular document. You called my attention to the fact that under paragraph 2 there is a statement contained saying: "The Fuehrer now has ordered that severest measures are to be employed in order to break down this movement in the shortest time possible." You followed me in what I have reference to, witness?
A Yes.
Q Do you now deduce out of this statement that the 100-to-1 and 50-to-1 was personally given by Hitler or did Keitel consider this adequate as the severest means which, after all, is the difference as to whether this is a Keitel order or a Hitler order?
A It is my conviction that these ratios had been decided by Hitler.
Q Witness, by making reference to this order we have just looked at you made it very clear that this particular order not only had arrived in the Southeast prior to your arrival but was actually carried out. Did you want to say with that statement that had you been there you would not have carried it out; or for what reason at all did you make that statement?
A The order had been with the troops before my time. For me to pass on that order -- that is to say, whether I would have passed it on or not had I been down in the Balkans at an earlier time. I have not mentioned by one word. The purpose of my statement was merely to say that that order was with the troops before my time, that it had reached them without my doing anything and that I was not in a position to rescind it. But I never asserted that order had been carried out. I never said that all because is my area it was not carried out.
Q Witness, this order was carried out in the Southeast, was it not?
A I can see from the documents that in single cases it was applied but not in my area and not by my troops.
Q Witness, had you been down there, had you carried it out when it arrived, would you have considered it a criminal order?
A These are two questions. Let me answer the first one. I am unable to say what I would have done because I am unable to put myself into the position prevailing in 1941. I would have to do this in order to judge what I would have done in that period of time. This is a theory which lacks all foundation.
As for the question whether the order is criminal, we had never troubled to think whether an order which reached us from the highest authority was criminal because we did not assume that to be the case from the word "go."
If I may say something in particular about this order, a reprisal ratio is laid down therein. It is my opinion and conviction that reprisal measures of this sort are not forbidden by International Law.
The only thing which may be debatable is the extend and the ratio. Here again we find in International Law no special indications. Now, if my superior officer goes and says, "I interpreted the latitude granted in International Law to 'this or 'that' degree -- namely, that I decide on the ratio of 1 to 50," and says himself, "This is a measure of extreme harshness dictated by 'this or that' special circumstance," I am in no position of telling him, "You are wrong and I am right," in a field where no one hard and fast rule exists but where opinion is the decisive factor. I had to come to the conclusion that an order of this sort cannot be criminal but that it is unusually harsh as it admits itself. I am not the man who likes unusual harshness. Therefore, I could not do anything else had I come into that position but to say "yes" and carry out the order in the way which would have regarded as proper and that is what we did. We never reached the actual ratio in my area but we kept the figures extremely low, as I have described in such detail. Those low figures were unavoidable and justified under all circumstances.
Q If I understood you right, witness, there is no question as to the legality of reprisal measures according to your knowledge as far as International Law is concerned. There could only be some doubt, you said, as to the extent of the ratio to be applied. Is that correct?
A Yes, that is quite right.
Q You also said that you couldn't answer my question what you would have done in 1941 because you were not familiar with the conditions at that time. Do you want to say, witness, that the conditions pertaining to reprisal measures in the Southeast had materially changed as far as reprisal measures were concerned during the time that you got down there?
A I am not able to say that because I did not know the conditions of the preceding period. All I know is that in my area they had not changed.
Q Witness, you have, if I understand you right on the basis of your previous testimony, confidence in Hitler's ability as a political and military leader?
A Up to a certain period of time, then that confidence vanished.
Q Now, in the time you refer to, is that 1938?
AAs far as military leadership is concerned; I do not speak of political leadership here because that is no business of mine and I could not form any judgment about it. As to military leadership, this confidence lasted up until Spring 1942.
Q And when you talk about confidence along military lines which you placed in the Fuehrer, would you include an order of this nature along military lines? I mean this is a military order. One could not call it a legal order.
A Well, I have now spoken of the point of view of military leadership alone, military operations, for instance.
Q I understood you correctly, witness. I merely meant whether or not this type of order of necessity is a matter of military operations, at least borders that what you and I understand of military operations. It's not a matter dealing with, shall I say, fish or automobiles. It deals with War. It deals with the conduct of war, does it not?
A This matter is not a military matter, not a purely military matter. This order deals with a set of facts where no questions of confidence or no confidence enter. In scale of large scale operations, the result of which is still unknown, the word "confidence" is important.
Q Witness, you stated that in, I believe, 1878 the Austro-Hungarian monarchy used 18 infantry divisions of something like 20 or 23 thousand men each to occupy Bosnia in peacetime.
A Well, what I said was, I believe to recall, that it was about 18 divisions. At any rate, it was a very large power in proportion to the small country which the monarchy could afford because it was in a state of peace and had all its forces at its disposal.
Q I won't try to contest the number of divisions within, if you wish, 30 percent one way or the other; but you did make a statement as far as the great number of men and divisions were concerned which the Austro-Hungarians employed to occupy Bosnia in order to possibly prevent an outbreak on the part of the partisans or a revolt.
A Not in order to prevent a revolt but in order to suppress it. In Bosnia itself there was what the Hague Land Warfare Conventions call "lever en masse." A country which had not been occupied rose in arms, and they were suppressed. And the numbers of troops used here in order to finish the business as swiftly and as economically as possible, with regard to lives, was numerically the most extreme measure which you can imagine.
Q Witness, you made some geographical and numerical comparisons and stated that on the same basis, taking the area of the Second Panzer Division into consideration, you would have had to use approximately 150 German divisions. Isn't that right?
A That is an improvised figure for this area, some extreme type of occupation would have been practiced as was done by the Austro-Hungary Monarchy in 1878 and in Bosnia and Herzegowina. I also added that in wartime you couldn't afford a think like that.
Q And I believe you made these comparisons to more or less rebut the statement that there weren't enough troops down there. And, also, where are you going to draw the border-line? You made it for this purpose did you now?
A Yes, I used the example in connection with the question what conduct of war against the partisans would have been feasible. I replied "Only on condition that you had enormously numerous troops at your disposal......you would have been in a position to put troops into almost every village and province in order to prevent all activities on the part of the partisans and so that you could guard all objectives which might have been exposed to attack, such as railroads, roads, bridges, etc." But that number of troops, needless to say, was not at our disposal, and that should a nation at war even had the troops it would have been, from the point of view of the Supreme leadership, entirely wrong to tie down a force of that quantity for purely defensive purposes." That I think was the context.
Q Now, Witness, that comparisons you drew are somewhat lame because in 1878 airplanes, radio, mobility, tanks, machine guns, and etc. were unknown to modern armies. So I think that to say that you had needed 150 divisions to achieve a similar result as the troops of the AustrianHungarian Empire isn't quite correct in fact is it? In 1943? There is 65 years of development between these two statements.
A I only took a very vague comparison not in order to arrive at the result that we would have needed 150 divisions, but only to stress that you did need enormous power and forces because we were not only concerned with arms and weapons. We had only to think of the human element which had to be prescribed from partisan activity. And they were scattered all over the country. They lived everywhere, even in the smallest villages.
Q Witness, do you know whether the OKW or the "Herresgruppe", and particularly yourself, as a student of history, ever took into consideration the fact that these people who lived down there for centuries are known for their legendary courage, their will to freedom? Did you ever give any thought to that when you were faced with partisan warfare? In modern war, as you know, such psychological factors have to be taken into consideration, unless one does not want to commit suicide. Isn't that right?
A Certainly the psychological factors must be weighed most carefully. We were of the conviction that the partisans looked back on a century-old tradition in their fight and that they distinguished themselves with special bravery, love of freedom, and what you have overlooked, particular cruelty. Bravery and cruelty had to be taken into consideration, but what part the love of freedom played in this situation, we could not understand because we went down there as liberators. We liberated Croatia from the Yugoslav yoke. There was not one Croat who did not share that conviction. The fight of the partisans was not spurred by love of freedom so that they fought against us for for this reason, but as I have explained it was a fight directed byTito who had been sent from Moscow to the Balkans, who on behalf of Moscow organized these elements in Croatia and led them into the fight against us.
You could not call this a battle for freedom.
Q Witness, the Poglavnik you have reference to was the notorious Dr. Ante Pavelic. Isn't that right?
A I don't know what you are driving at when you use the term "notorious." He was not a friend of mine, as you know, but why he should be notorious is more than I can know.
Q Dr. Ante Pavelic was trained and lived in Italy did he not? He was trained by the fascist government of Mussolini?
A I don't know. Trained in what direction. He was a grown-up man, a highly educated man.
Q Well, he was indoctrinated with fascist ideology in Italy was he not?
A Yes, well, I have to assume that, I suppose.
Q And I think you know too that he was involved in the murder of King Alexander of Yugoslavia in Marseilles in 1934, don't you?
A No, I don't know that.
Q This is complete news to you, Witness?
A Yes, that is entirely new to me. There were in his immediate surroundings a man called General Percevic, and it was he, as I was told, who was somehow for other connected with the assassination. But I never heard that about Pavelic.
Q Witness, the Ustasha was the personal body guard of this Ante Pavelic was it not?
A Not all of it. He had a division as his body guard which was stationed in Zagreb, and near Zagreb, and the other Ustasha battalions, which were stationed all over the country, had nothing to do with body guarding.
Q But some of these Ustasha units were trained in Italy weren't they?
A I heard that, yes.
Q And could you tell us, Witness, whether or not you know that this Ante Pavelic was, so to speak, a political protege of Mussolini?
A I assume that definitely; I think that is quite correct, and that actually is the only explanation as to why Pavelic came to Croatia at all.
Q Witness, you stated that the Croatian Government was an ally of the German Government. Is that right?
A Yes.
Q And you said furthermore that its citizens, who were used to work for the Germans or for the German war effort, were constantly not used in violation of International Law because by supporting the German war effort they are supporting their own war effort. Did you make that statement?
A Yes, and it's quite true too.
Q Witness, do you know anything about whether or not you had an operational area in Croatia? In other words, was Croatia considered an operational area after 1943?
A No, Croatia would have become an operation area in the event of a landing.
At the time when we were concerned only with partisan fighting there was no reason for declaring Croatia an operational area. That would have caused an enormous amount of complications. In a hostile country it would have been very simple. It would have been declared as such, and the Commander in Chief would have been given executive power. In an Allied and sovereign country the Croatian Government itself was the holder of the executive power just as much as the Albanian Government in Albania.
Q Witness, Croatia, was partially occupied by German troops I understood you to say. Is that right?
A Yes.
Q Was Croatia an independent state before German troops occupied it? I don't mean historically, but just a day before you got in there, or was it part of Yugoslavia?
A It was part of Yugoslavia at that time.
Q Now, have you ever heard about the fact of creating an independent government in an occupied area dominated by an occupation power? In other words, you talked about the independent government which had executive powers and the rights to decide over life and death for its own citizens, yet this government was founded, was it not, as a result of the occupation of German forces? Just what is your conception on international law in regard to this question, if you can answer it?
A Well, that's quite simple to answer. The German troops by occupying Croatia had liberated the country. The country appointed its government and that government began to function while the German troops were in Croatia. I do not see any reason why this should be inadmissible.
Q Witness, I now come to the Italian surrender. You know, do you not, that on September 8, 1943, Marshal Badoglio, in his own behalf as Commander in Chief of the Italian Army and on behalf of the King of Italy, signed an unconditional surrender pact or agreement with representatives of the Allies? That fact was known to you, was it not?
A Yes, I only know also that it wasn't on the 8th but on the 3rd of September; it was announced on the 8th of September.
Q That much the better. Now, witness, will you explain to the Court your trend of thought when you approached after the surrender terms, and you already told us now that it was on September 3rd, the Commander in Chief of the Army Group Este and asked him to make a special deal with you despite the fact that all Italian forces already had surrender ed to the Allies?
A Do you mean my trend of thought?
Q No, not so much as to what you thought, but just how you ever could get the idea that was legal.
A Italy leaves the Alliance; Mussolini's Government had been overthrown before then; Badoglio, who was anti-German, took over the government in July; and on 8th of September Italy leaves the Alliance. We had to expect that the Italians would become our enemy. We did not know what orders the Italian troops had, but one thing was certain, namely, that in the coastal areas of the Balkans we could not have Italians around who were not our Allies. On the contrary, some had gone over to the other side without even declaring war. These Italians had to be removed from there and, therefore, they had to be taken prisoner. After all, it's impossible to leave the Italians on the coast and ignore them and simply not take any notice of them, and to have a whole enemy Army Group at one's own door steps, which constituted a highly dangerous enemy bridge-head in the Balkans were it was definitely clear that the Allies, at that period of time, intended to make a landing on the Balkans. General Marshal of the United States Army himself stated, after the war, that he regarded it one of his greatest merits to have dissuaded Mr. Churchill in Casa Blanca from the idea to have a landing in the Balkans. Otherwise, a landing in France would not have been possible later on. But we had to count on that danger as early as the summer of 1943, and that was the situation and also the reason why new troops were transferred to Greece, for instance.
Q Let us try and clear up first a few minor facts. Who was, at that time, the Commanding General of this Army Group Este, if you remember it?
A It was General of the Army Rosi.
Q Was he the person you made this agreement with?
A No, I made the agreement with the Commander in Chief of the IXth Italian Army.
Q And that was the only Italian Army stationed in your area that you were concerned with?
A The IXth Italian Army, and General Dalmazzo commanded all Italian troops in my area with the exception of the Italian XVIIIth Corps, which was stationed higher up in the north in Zara. It was not quite clear to me at the time who it was subordinate to nor do I know today
Q Now, this Italian General who commanded this IXth Army and entered into this agreement with you is obviously a traitor towards his own government, isn't he?
A That is entirely incorrect. I found out later on the Italians had no orders at all. Secondly it would not have mattered at all for the validity of the agreement.
Q Just why?
A Because it is recognized under international law that concluded capitulations are valid irrespective of the fact whether or not the Commander in Chief concerned acts on the basis of orders by his government, whether he acts without its orders, and even if he acts contrary to its orders. The agreement remains valid and only he is responsible towards his government. I read that only a short time ago in the Rules of Land Warfare, and in an American book about international law by Hyde, who is an advisor of the American State Department. In other words, it doesn't matter a bit what orders General Dalmazzo had or whether he had any orders at all, or whether he acted against his government, whether you call him a traitor or not, or anything else. He was fully authorized as Commander in Chief, under international law. And the capitulation is valid under international law. And the third point here is that the entire forces of his Army were concerned thereby down to the last man, and it is entirely without importance whether this or that General or this or that unit agrees to the capitulation or does not agree to it.
Under international law it is binding to him under all circumstances.
Q General, I appreciate your interpretation of and lecture on international law which you have given me. I don't quite concur with you.
PRESIDING JUDGE BURKE: I think he probably designed it more particularly for the attention of the Tribunal. You may proceed.
BY MR. RAPP:
Q In any event, wasn't this Italian General rather a traitor when he surrendered forces to you which outnumbered you ten to one? He wasn't acting under duress was he?
A. No, I did not care at all how he acted. These are very much matters of opinion. During my interrogation Mr. Kreilsheim, for instance, lectured to me. He explained to me, for similar reasons, that Andreas Hofer was a great national hero. To us Austrians and Tyrolians, and Andreas Hofer was a hero for freedom.
Court No. V, Case No. VII.
Q. We will talk about Andreas Hofer later on.
A. But as far as Napoleon was concerned he was a rebel.
Q. To go back to the Italian questions and away from Andreas Hofer. You said that the Italian soldiers who gave their arms to the partisans were rightfully treated the way German soldiers who had done the same things would have been treated. Did it ever occur to you that these two cases are not quite identical?
A. I don't know why not identical. At the most not to anticipate that idea perhaps --
Q. Let me explain it to you before we go to some other subject. Isn't it true that someone has a greater right towards his own citizens and troops than under International law towards the troops of the enemy?
A. There is not a greater or smaller right here; there is only one right. At the most you could expect certain moral inclinations towards this or that direction but there are not several rights. I think you probably mean that the Italians might possibly have had a greater right to supply the Partisans to arms than the German soldiers. I don't think what there is a greater right there because at the moment when the capitulation becomes valid the Italians were under German law and the law does not discriminate between a prisoner or a citizen of one's own country.
Q. Well that, witness, is all based on your conception of International law.
A. Yes.
Q. Now, I allege that our conception of International law is that the Italians had a perfect right to resist you in view of the surrender terms reached between the Allies and Badoglio on September 8th -- you moved it back to September 3rd -- and in view of that they could not be considered franc-tireurs because they fulfilled the four prerequisites under International Law did they not?
They wore uniforms, they were organized in units; they wore their arms openly; they were lead properly by competent officers, and so forth.
A. Yes.
Q. That is our concept of International Law?
A. Yes, But I believe that I can prove to you that your conception is wrong under International law I mean. First, the agreements between Badoglio and the Allies did not concern me; second, I did not know them; and third, it is definite that Dalmazzo concluded the capitulation. As I explained it does not matter under what conditions they were concluded. Of course no duress must have been applied which was not the case and fourthly I don't know how you can ignore the Hague Rules of land warfare which say so definitely that a capitulation is valid from the moment of its acceptance for the entirety of the units concerned which have capitulated. These are facts which you can't ignore and these facts decide that the fight by the Italians was carried out on an illegal basis. The four prerequisites, leadership, uniforms, weapons, etc. - they might have fulfilled them a thousand times over but the basic legal consideration did not apply. Let me repeat once more the example which we have heard here ad nauseam. If I should form a regiment here and lead it in first rate uniforms, bear arms provocatively and openly, and extremely delicate in all usages of warfare and start a war against the American occupying power, the men concerned will be described without a doubt as Partisans although they have complied with all four prerequisites, but, the actual legal basis for the battle is lacking and that applied equally to the Italians.
Q. Your example is not correct; also your whole scheme is merely based on your own conception of international law. It stands or falls with it, doesn't it? The way you see it and the way you rationalize it, isn't that right, witness?
A. No, these are not my conceptions; these are without doubt generally valid conceptions; you can read any amount of books about it; you will not find any other conceptions -- of course except in Nurnberg.
MR. RAPP: Your Honor, I ask the Tribunal that this last statement of the witness be stricken from the record as being gratuitous and not necessary.
JUDGE BURKE: You have apparently misinterpreted your function of a cross-examiner as to one that indulges in a discussion of legal principles with the witness. It might be well to reserve that for your legal argument until the conclusion of the case. You may proceed.
BY MR. RAPP:
Q. Witness, in one of the documents, - I am having reference to NOKW 910, Exhibit 327, Document Book 13, page 56 of the English, Document Book 13; it is on page 42 of the German. I am referring to this particular directive we have many times reference to during your direct examination. Now, you will remember the Hitler order NOKW 916, Prosecution Exhibit 323 in the same document book, on page 42 your Honors, and page 29 in German; I am having reference to two orders in the same document book, one an page 42 and one on page 56. Witness, will you explain why, in your directive or application of sanctions which you made known through the 15th corps to the affected Italian corps went way beyond the Hitler directive of September 15, 1943. I did not find any reference in the Hitler directive saying that one officer and 50 men are to be shot for certain acts which you considered illegal in connection with International law.
A. Do you mean why I, in my order, included that provision although the Hitler order did not contain a regulation of that sort?
Q. I mean that to some extent but primarily what I mean is the fact that you went way beyond, in other words you arbitrarily fixed the ratio of one officer and 5 men.
A. I did not go far beyond because this order I had not had then. I had parts of it. The part I had is included on page 31 which is on page 45 of the English Book. The order is to point "B" came in on the 11th and, the one concerning point "A" about weapons came in only on the 13th. These orders meant something entirely different. I have threatened sanctions here and I did so quite independently of any other order completely on my own for which I was entirely justified; nor were these actions ever carried out. They had fulfilled the purpose simply as a threat because they were rather subtly adjusted to the psychology of the Italians.
THE PRESIDENT: This will conclude the testimony for today's session and the Tribunal will adjourn until Monday, November 3rd, at 9:30 A.M.
(The Tribunal adjourned until 3 November 1947 at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Wilhelm List, et al, defendants, sitting at Nurnberg, Germany, on 3 November 1947, 0930, Justice Wennerstru, presiding.
THE MARSHAL: Persons in the court room will please find their seats.
The Honorable, the Judges of Military Tribunal V. Military Tribunal V is now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain whether or not all the defendants are present in the court room.
THE MARSHAL: May it please Your Honors, all defendants are present in the court room except the defendant von Weichs who is in the hospital.
THE PRESIDENT: You may proceed, Mr. Rapp.
CROSS EXAMINATION - Continued LOTHAR RENDULIC - Resumed BY MR. RAPP:
Q Witness, on Friday last, prior to the recess, we were discussing the order you had issued stating that one Italian officer and fifteen men should be shot for certain acts, in the even such acts would be committed against the German armed forces, as part of the sanctions in connection with the surrender agreement you made with the Italian forces. At that time I had asked you why you had gone in these sanctions beyond the original Hitler directive, and you stated that you had received this directive on the 11th of September, while some of these sanctions were agreed upon at an earlier date. Do you remember that we left off at that point?
A Yes, and I also mentioned that the Hitler orders had nothing to do with my orders. The Hitler orders, and I will supplement this now, were punitive measures for violations of the capitulation con ditions, while my order only threatened sanctions, if violations took place.
Hitler orders and the threatened sanctions are two quite different things.
Q You realize that we are talking about the Hitler order in relation to the Italian surrender? That is, the particular Hitler order I have reference to. I think it appeared under the code word "Axis".
A Yes, these Hitler orders were issued without Hitler being able to know anything at all about the contents of my capitulation conditions, because the one order came already on the 11th. The capitulation was concluded on the 10th and the sanctions of this capitulation did not go beyond the army and, therefore, they could not have been known to Hitler.
Q Can we say then, witness, that these sanctions - that is, one officer and 50 men - were put down upon your own initiative, though never carried out, and had nothing to do with the Hitler orders that we just talked about?
A Yes, these sanctions were exclusively an affair of mine. I felt myself absolutely justified in issuing such sanctions because these were in accordance with international custoj. I know no capitulation in which sanctions are not threatened.
Q Would you say that any of these sanctions were ever carried out?
A The sanctions threatened by me were definitely never carried out.
Q Witness, you stated in connection with this particular issue, that General Lueters had previously, and on his own, made similar agreements with the Italians, independently, embodying similar arrangements. Now, it seems strange that the corps commander, on matters embodying politics as well as military necessity, should make these agreements on his own without having ever talked to you to get your trend of thought, so to speak. You, however, presented it as a great surprise.
A I never said that General Lueters made agreements independently in this sense, as I made them, with the Italians. I only mentioned once, when I was talking about the measures with regard to the withdrawal of the Italians - in this instance I mentioned that certain severe measures had to be threatened and that, independently from the Army, the corps also had arrived at the same decision. With regard to Lueters' relations with the Italians, I only mentioned that the Italians, in Zara and in Northern Dalmatia, made no difficulties whatsoever, but with regard to agreements and sanctions by Lueters I said nothing at all because such matters never took place.
Q Witness, you heard the defendant Foertsch, when he took the stand, tell us that prior to the Italian surrender - that is, the Italian surrender to you, there was some talk around the headquarters of Army Group F in connection with this Fuehrer Order. In other words, the Fuehrer order, in writing, was received at a later time, but some people in Army Group F knew already ahead of time what this order was to contain, generally speaking.
A I don't remember this comment of Foertsch's but, of course, the most important parts of the written Fuehrer were known because these parts preceded it as a teletype. The Fuehrer order was dated the 15th of September and could scarcely have arrived at the army before the 16th or 17th or 18th, while the most important parts of this order had already arrived at the army on the 13th or the 11th, as can be seen from the documents here, and if the army groups were supposed to have known about the contents, then they could only have known about them by reason of this teletype which contained the most important parts of the Fuehrer order.
Q Witness, will you please now take Document Book #14 which I have handed you, and refer to Exhibit 340?
Your Honors, that is on page 17, page 17, and it's on page 12 in the German.