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.
I hope that this particular book you have, witness, is paginated.
A Yes.
Q Your Honors, have you Document Book 14, page 17?
I am having there again reference to NOKW 509.
Witness, you ordered in connection with this particular order:
"The rule for reprisal measures is for one German killed, fifty hostages shot; one German wounded, twenty-five hostages shot."
In this connection, you made a statement that this was merely to to be applied as a rule and that lower commanders could make exceptions to this rule if they saw fit, depending on circumstances, and thus, it was not a binding orders.
Did you make a statement like that?
A Yes, but I just want to get this thing correct. I did not order this ratio of one to fifty, but I only included, in this existing order, collective order and this order I mitigated in the sense that I set down here at the highest figure that figure which was contained in the Fuehrer order as the lowest figure, and I even extended this mitigation by setting this down, not as a binding order, but as something rather more free, and, as practice showed, this was also interpreted in this way. The highest figure was not even approximately reached as I have already stated in detail.
Q. Witness, just for a minute I would like you to take a look at Document Book 2, Exhibit 53, NOKW 258.
A. Could you please give me the page?
Q. I don't have the German page in that particular volume. I am sorry. It is 68 in the English, it is NOKW 258. That is the famous Keitel order, the 50-to-1 and 100-to-1 Keitel order. Now I believe on page 2 of this particular order, Keitel makes a statement which I will quote now verbatim: "In such a case the death penalty for 50-to-100 Communists be in general deemed appropriate, in retaliation for the life of a German soldier."
Now I would like to ask you now whether the expression, "in general deemed appropriate" is about as loose a language as the words, "as a rule"? Would you interpret it than way, General?
A. With regard to this, I must say that I heard this interpretation for the first time during Mr. Fenstermacher's cross-examination of General Foertsch. We never thought that this contained anything loose at all, because we know Hitler and we knew Keitel. The expression used here could never gloss over the fact in our mind that this was a strict, binding order, and if you are of this opinion today, then you are in opposition with the IMT verdict against Keitel, because this verdict never regarded this order as a "loose order " at all.
Q. Now, General, if I understand you right, then you say everyone know what you meant by the word, "rule" and everybody else knew what Keitel meant by, "deemed appropriate" "generally deemed appropriate"?
A. I have also proved that my commanders understood this order exactly. For instance, I mentioned as an example, an order of the 369th Division, which expressed my order in an even milder form. Therefore, I was certain that my orders had been correctly understood by my troops and the whole practice of reprisal measures demonstrated this.
Q. Witness, the words,"as a rule" theoretically speaking, could also mean that instead of going below 50, they could also go above 50 if they wanted to do that?
A. Yes, that is being rather a case of sophistry, to state such a thing: the troops would never have arrived at such a thought. I have proved the correctness of my words in the facts which are reported by the dozen here.
Q. If I understand you right, witness, you say that in no particular instance, have we proven to you that you did execute, or your commanders executed in compliance with this rule, at a ratio of 50 to 100; is that what you meant?
A. Yes, I know of no single case, and if there had been such a case, it must have been very particular exception, and if it had come to the knowledge of the army, then the army would certainly have tried to find out the reasons for it. Also I could not have been able to prevent any stubborness of any kind, because this man could always refer to the Fuehrer order at any time, and I could never make this order invalid.
Q. After having seen all of these documents which have been presented by the prosecution against you, did you get the impression that the Allies or the American Forces found all of the documents, or did you rather get the impression that we only got some of them?
A. My impression is that they found all of the documents, but that you only gave those which incriminates us.
Q. Witness isn't it rather strange that you leave the decision as to how many hostages should be executed, to lower commanders in a rather loose generalization, whereas an army commander of your caliber, as has been proven by these documents, speaks in a clear-cut and decisive language? Does the German army know of the rule, or of the usage that the desire of a general is about the same as an order? Is that particular phrase known in the German army?
A. In my purely military orders, if they were orders for attack, or orders for defense, then the orders were very clearly set down. There was nothing loose in them. It was ordered. But in such a case as reprisal measures, with which we were in opposition, but in regard to which we had binding directives, then the orders given had to be formed loosely, if we did not want the orders to be rigidly carried out, and that was, of course, what we did not want.
I would like to make a comparison here; an order can only be judged if one knows how it was interpreted, in the same way as it was with the best of text books, on English Government, but from this book one still docs not know how the Government is carried out in practice, one must know how the laws are interpreted and how they are actually carried out, and in the same way, one must also know how the orders are understood and the sense in which they are given. Then one can interpret them correctly.
This order was given in the sense from which it could be seen that the Army did not want these reprisal measures to be applied as it is ordered, but it leaves to every man the freedom to apply whatever mitigation he possibly can, and practice shows that these orders were also interpreted in this way.
Q. Witness, let's look for the last time now at Document Book 14, to this Exhibit 340, that is NOKW 509, page 17 of the English, Your Honor, page 12 of the German. Now let's go very shortly together over this order, and summarize just what it actually contained, so far as retaliation measures are concerned.
Now I have studied this order and I got the following impression, and I want you to tell me whether or not I am right. It says first, "The circle of persons who can be shot in connection with this order are all those who were captured within regular engagements, male bandits under 16 and over 55 years of age, including women," and finally, so far as labor allocation is concerned, "these male bandits capable of work who were wearing either the German uniform or the uniform of a German ally". Did you follow me, and am I right up to now?
A. I don't know which point you are referring to here.
Q. I am having no reference about any particular one point, but I have studied this order in all its points, and I included that what you said in this order; for instance, to illustrate it, it is true that male bandits under 16 and over 55 years of ago, who were captured in engagements could be shot outright, because you say the opposite by saying that those between the ages of 16 and 55 should be taken prisoner. That leaves open those who are below 16, and above 55, doesn't it?
A Please tell me where this is which you are reading?
Q What order do you have before you?
A The order of the 15th of September.
Q I will make it simpler for you, witness. Your Honor, I am submitting now NOKW 731 to become Prosecution Exhibit 603. Now, witness, in studying this particular letter ---
A May I please read it first of all?
Q Yes, please, I want you to first. - Now witness, have you finished this letter?
A No, it is very confused.
Q Before you finish it let me tell you one thing so we won't waste too much time. I have taken the contents of this letter and started to to ask you some of the questions which General Neidholdt expressed in this letter. Since he served under you he was probably more capable of talking about these things than I am today here. There is one particular reference, however, I don't want you to overlook when you study this letter. Will you please turn to page 2 of this letter. In there he has reference to another order by the 2nd Panzer Army, Ia 707/43 dated 27 September 1943, and he says there that the arrest of hostages and the carrying out of reprisal measures is to be stepped up in compliance with this order. Now that order you won't find in any other document books that have been submitted against you. I don't think that it would have been a very favorable order looking at what General Neidholdt says, but we have never found that order and we don't have it.
A Yes, perhaps if I had the order I could explain it.
Q Now just try and make reference to this document that I have handed you now, and let us know whether or not General Neidholdt is right when he summarizes the reprisal measures as contained in your order dated 15-9-43 which is Exhibit 340.
A I cannot understand this Neidholdt order at all because everyone can compare Neidholdt's order with the order of the 15th of September.
Q Pardon me, just a second. You call this an order; this is not an order; this is a letter, isn't it?
A Well, this letter. When Neidholdt states here, according to this order, that is the 15th of September, the circle of persons to be shot is very great, he includes, with the exception of those who are taken prisoner outside combat, all the captured male bandits under 16 and over 55 years; could you please tell me if this kind of thing can be read from the order of 15th of September? It is complete nonsense to maintain that it is forbidden to shoot the people between 16 and 55 but all those who are younger than 16 and older than 55 can be shot. He is an absolutely illiterate who can read anything like that from this order.
Q Witness, now just to set the record straight, this Neidholdt was a General in the German Army who commanded the 369th Croatian Infantry Division which was a part of your Army, as a matter of fact it was in the 5th SS Corps under Phleps and if this General Neidholdt doesn't understand your order which you claim is so clear-cut that every General understands what you mean by as a rule, you can't really be surprised that other people don't understand your order either; so isn't it rather true that instead of saying Neidholdt doesn't make any sense, saying that your order wasn't clear enough to be understood even by a General?
A No, my order was sufficiently clear, and I would like to meet the man who is in a position to get the impression of the order such as Neidholdt received. Neidholdt was undoubtedly a sensible man, but he didn't even sign this himself. This whole matter was done by some kind of small official who probably showed it very quickly to Neidholdt, and then it went to the corps. The corps, which had a much better insight, really could have only laughed at this letter. I Would ask you to compare these things yourself. Where does it state that such things are ordered? And the fact that Neidholdt correctly understood this order, particularly with regard to the words "as a rule" can also be seen from this document here, Book 14; I don't know the page,-yes, on page 58, NOKW 944. This is another order by Neidholdt and signed with his own handwriting, and this contains the absolutely correct interpretation of my order of the 15th of September.
- I don't know the English page. - This is complete nonsense written by an illiterate which Neidholdt never saw. You could give this order to a very small boy and ask him if he could interpret from this what Neidholdt is supposed to have interpreted. He would laugh about it.
Q Now, witness, we will continue. Witness, I am now handing you Document Book 12. I am having reference, your Honor, to page 112 in Document Book 12, NOKW 155, Prosecution Exhibit 306; on page 112 in the English. Do your Honors have that? Witness, during your direct examination you stated that you were opposed to transporting captured partisans for slave labor to Germany, that is, not because you knew that they were to be used as slave labor in Germany but rather because you needed such captured partisans for work in your own territory. Did you make that statement?
A Yes.
Q Your Honors, I am now having reference to 744 PS which was handed to the court as an insert in the same document book, Exhibit 302. It was given to the court as an insert. Now, witness this order I have handed you now is a Hitler order, is it not?
A Yes.
Q And this Hitler order directs that certain measures be taken in connection with partisan warfare about the transporting of captured partisans for labor employment to the Reich.
A Yes.
Q Will you tell us now, since you have said once before, that the Hitler order is binding, how you were in a position to oppose this Hitler order?
A Yes, that is very easy. When we found a chance to circumvent these kind of unpleasant orders then of course it was easier for us than if there was no chance at all of doing this. The position with regard to the transport of prisoners for labor in Germany was rather vague. If we were against this deportation and if we were ever liable to be made responsible for this, then we could always use the excuse that the conditions were very vague. I can give you quite clear proof of this if you would give me Document Book 16. In Document Book 16, on page 143-
Q Witness, this--
A This is a document from which one can see the way in which this Hitler order could be circumvented.
Q What page did you say, witness?
A Page 143, NOKW 1418.
Q Page 97 in the English, Volume 16. The judges have volume 16. Will you continue witness.
A From this order of the 15th Corps which is against the transport of bandit suspects to employment in the Reich, it can be seen that offices of the Four Years Plan were entrusted with the recruiting of the labor, and that this whole transport was to be carried out in agreement with Croatia Government authorities by reason of a German Croatian agreement dated 1943.
That is, this agreement was concluded about three or four months before the Fuehrer order. The Croatians were against the transport of workers, and the vague conditions which arose through this agreement could be utilized by us in order to circumvent the rigid orders for transport of the bandits. In order to keep up the appearance, it is ordered here that captured bandits or deserters are as formerly to be sent to the camps available for this purpose of work. The offices of the Four Years Plan were allowed to get labor from these camps in some way or other; I don't know actually how this was done. But you see the conditions here are very vague and very unclear because lots of Reich officers were mixed up in the matter, and then there was the German-Croatian agreement, and the Croatians were against this transport. We were also against it, and by clever application and exploitation of these conditions the order was able to be circumvented.
Q Witness, all I wanted to get from you is the fact that under certain conditions Hitler orders could be circumvented if conditions permitted?
A If the conditions were as favorable as they were here, where the corresponding reasons could be found at any time, then this was possible; but this is the only case which I know about, and it is also a rather subordinate case, not of very much importance.
Q Witness, didn't you tell us during your direct examination that on account of the friendship pact between Croatia and Germany it was erroneous on the part of the Prosecution to assume that these Croats were used for forced labor because working for the German war effort was the same as working for the Croatian war effort. You made a statement along these lines, didn't you?
A Yes, I am still convinced that this statement is correct.
Q Will you then explain to us how come that the German High Command did not realize that because they did not exempt, in view of the explanation you have given here in this court, these Croats from slave labor in Germany, they should have thought about that too, shouldn't they?