In examining the grounds adduced in support of the amendment, mainly those advanced by Professor Glueck and Professor Lauterpacht to whose initiative the new version of the two regulations is to be attributed, one will find that they are dictated by mere expediency.
The events in Germany after 1933 showed very clearly where the casting oberboard of fundamental principles of law has got us to. No legal system can survive such treatment; neither can international law.
Professor Hyde's comment proves that, even today, eminent foreign lawyers, including American jurists, regard the plea of superior orders as a justification.
Professor Hyde's reference to reprisal measures, quoted below, groves that he views the subject with the same realism he had displayed throughout:
"In land warfare the opportunity for a commanding officer to exorcise discretion in resorting to retaliation is narrow, because such procedure is commonly determined by the highest authorities of the State, and when decided upon, leaves the commander in the field no alternative."
May it Please the Tribunal I attach decisive importance to the statements of Charles Cheney Hyde, Professor at Columbia University and former advisor to the State Department of the United States of America, contained in the 1945 edition of International Law; I submit that these statements are of decisive importance to the case at issue before this Tribunal and, if it please the Tribunal, I commend them to the special attention of the Tribunal.
IV.
Now we turn to the events which are the subject of this trial.
1.
At the conclusion of the campaigns against Poland (September 1939), Denmark-Norway (1940), and France (1940) the following military situation aroses toward the end of 1940.
The bulk of the German army was in France; smaller parts were in the East. As is historically known, in the autumn of 1940 Italy attacked Greece without previous understanding with Germany, and against Hitler's wishes. This campaign took an unfavorable course for Italy. Further serious danger threatened the Italian army with the landing of British forces and the establishment of British air bases on Crete and the Greek mainland. Negotiations concerning this had been taking place for some years between England, France, and Greece.
The British forces in Greece constituted at the same time a threat to the Rumanian oilfields which were vital for Germany, and also a threat to the Reich's communication with the entire Southeast. This danger had to be removed, from the military standpoint, as well. But this was only possible if the British were prevented from remaining in Greece.
And so in November-December 1940 German forces assembled in Rumania. After March 1941 - as the 12th Army - they were transferred to Bulgaria.
Jugoslavia was not threatened by those events. At the end of March 1941 a pact was concluded between Germany and Italy, according to which her neutrality was to be observed to the fullest extent. However, the Jugoslav coup d'etat of 27 March 1941 changed this situation entirely. Through this the very government was removed which had concluded the pact with Germany and Italy a few days previously. During a state celebration organized by the revolutionary government, the German ambassador in Belgrade was publicly jeered at - while the police looked on - the Jugoslav army was openly mobilised and deployed. There was no doubt that the revolution was an act directed against Germany and Italy.
The Commander in Chief of the 13th Army deployed against Greece, Field Marshal Wilhelm List, was surprised by this turn of affairs in Jugoslavia. No provisions at all had been made for such a situation.
When, therefore, the order arrived from the Commander in Chief of the Army to the effect that because of the changed situation Hitler had ordered a simultaneous attack against Greece and Jugoslavia, the previously planned operation against Greece had to be altered, a completely new and formerly unconsidered plan of attack against Jugoslavia had to be drown up, and the deployment for it carried out.
Therefore, the military operation against Jugoslavia was an absolute improvisation.
In this situation a operation directed exclusively against Greece could not be undertaken from a military point of view. Because the long west flank of the 12th Army pushing towards Greece - and its one and only supply road running parallel and close to the boundary of the BulgarianJugoslavian frontier mountains in the Struma Valley - as well as the northern flank of the Italians fighting in Albania against Greeks, would have been exposed to the greatest danger from the unrestrained Jugoslav army. The Jugoslav army would have been able to attack the flank of field Marshal List's 12th Army as well as that of the Italian army in Albania in order to deal the death-blow.
Therefore, as things had developed, the military leaders could neither regard the campaign against Greece nor the campaign against Yugoslavia as an aggressive war.
The very war against Jugoslavia, repeatedly described by the prosecution as "illegal", is from the point of view of a military observer - and this alone is what matters here, because the defendants are, after all, soldiers - a test-case of an unavoidable preventive war, which had become militarily necessary because of political and military events brought about without the slightest participation in the matter by Field Marshal List.
Consequently the Greek army ceased to exist.
The fighting which followed then was only against British forces mainly around the Pass of Thermopylae and the Isthmus of Corinth. The remnants of the British forces, about 10,000 men who could no longer escape by sea, were captured on the southcoast of the Peloponnesus. With this, the whole of Greece was occupied by German troops.
Simultaneously, with the further advance from Salonica, the islands of Lemnos, Mytilene, Chios, and Skiros were occupied.
Crete was taken in May 1941 after heavy fighting. With the occupation of Crete the last possibility for a Greek government and parts of the Creek army to remain on Greek soil was removed.
In the meantime the entire Jugoslav army capitulated on 17 April. An armistice with the Commander in Chief of the 2nd Army, General Field Marshal Freiherr von Weichs was concluded on behalf of the government by Markovic, who traced his authority back to Simonic - who later became chief of the Government in Exile in London.
Both countries were occupied immediately after the campaign, as far as this had not already taken place during the military operations.
I submitted a sketch man to the Tribunal to illustrate the occupation forces at approximately the beginning of June 1941. If forces were withdrawn at the conclusion of the fighting, at the end of April 1941, then this was only done if the remaining troops or the troops brought in to substitute them were sufficient to maintain the occupation. Field Marshal List, it is worth noting, made no protest at the time against the withdrawal of troops, because the situation was such as to allow this.
It was not possible for the defense to give a complete enumeration of all the existing forces in June 1941, since the actual documents for this are missing; a thorough examination of all the files and maps belonging to this theater of war would also have been necessary, even of material not concerned with the subject of this trial. Both time and material however, were lacking for this purpose.
The Tribunal will further see from a large number of reports and orders and the distribution lists contained therein that both countries were overrun with a network of military agencies, whose task was to deal with the business of an occupying power, which task was actually fulfilled.
With this, the occupation of both countries was effective.
If the prosecution disputes this fact -- that the Allies would then have supported a legal insurrection movement and not an illegal one -
then I want to reply to this now, quite briefly, and would like to refer to the question in more detail later on.
I say -- and I don't think this can be refuted:
If the German military forces were sufficient to conquet the armies of Jugoslavia and Greece in a few days, then they were also sufficiently strong to occupy these countries effectively, after the armed forces of the latter were removed.
I think that further explanation here on this subject would be superfluous.
One other thing must be mentioned here to which I would like to draw the particular attention of the Tribunal:
The prosecution has brought no charges of any kind against the method of warfare during the campaign directed by Field Marshal List.
If it had been in a position to do this, I do not doubt that these charges would have been brought.
The campaign was directed chivalrously and according to the old traditional fashion; proof of this was produced in several documents.
ow strange, then, is this fact if, as the prosecution asserts, the purpose of the alleged plan - previously drawn up - was to decimate and terrorise the Balkan peoples and to commit war crimes as if on a conveyor belt!
When was there a better opportunity to carry out such a plan than during the fighting?
When was there a better opportunity to decimate the population by bombing and killing than during the fighting?
And when, finally, was there a better opportunity to lay waste the towns and villages?
The explanation of this apparently remarkable fact is simple:
This alleged plan never existed; it is perhaps a discovery of the prosecution.
COURT NO. V, CASE NO. VII.
Where is there a shadow of a proof of such a montrous plan?
Where is there a document which proves this plan?
Where is the witness who confirms that such a plan existed?
Where is the slighest proof that a man of the background and condition of Field Marshal List ever participated in such a plan.
The answers to all these questions are self-evident for anybody engaged in these proceedings.
Field Marshal List's own activities in the Balkans were, as Your Honors know, of short duration only (6 months). They commenced on 6 April with the opening of the offensive and ended as early as 15 October owing to a severe illness.
After the conclusion of the campaign and after the occupation of Greece, Field Marshal List transferred his headquarters as Commander of the Twelfth Army to Kyphissia, a suburb of Athens. Right away he tried to normalize life in Greech as fast as possible. He desired fruitful collaboration with the Greek people, towards whom his inclinations were friendly.
This attitude of Field Marshal List towards the population found its expression also in a visible manner: On the castle of Athens, which was the seat of the new Greek Government, the Greek flag was hoisted with his permission. As guard of honor there stood in front of the the tomb of the unknown soldier - right in the center of Athens - a Greek soldier beside the German soldier. And the Greek flag flew also on the Acropolis, the landmark of Athens.
When, late in summer 1941 due to the blocking of the sealanes and owing to the frequent blowing up of the one and only railroad, the first food difficulties were felt in Greece, particularly in Athens, Army stores were used at the instigation of Field Marshal List in order to help out.
Stops were undertaken to help the Greek population by importing food stuffs-- even if transports which were of importance for the Army were delayed in consequence. In Athens children were fed from German Army stores. In the field of hygiene and in cultural life everything was done in order to make it easy for the Greek population to forget the consequences of the war as soon as possible.
All these welfare measures which in the first place were for the benefit of the population of Athens were instigated by Field Marshal List although as early as the beginning of May, Southern Greece had been occupied by the Italians in accordance with Fuehrer Directive No. 29, which meant that the Italians had to deal with the administration of the country. He helped, although it had been strictly forbidden, according to the regulations, to employ German agencies there. In spite of the fact that it had also been forbidden to act as mediator, Field Marshal List kept receiving members of the Greek population who could submit their desires and requests to him openly. Everything possible was done for them.
Owing to his attitude and his welfare activities Field Marshal List was very popular with the Greek population. He could cross the country in his car without any military protection.
Apart from very occasional acts of sabotage of an insignificant nature Greece - and Athens in particular was at that time a peaceful country in which no insurrection movements could be observed.
Such was the situation in Greece when, in accordance with Fuehrer Directive No. 31, Field Marshal List was appointed Armed Forces Commander Southeast.
Thus he became the highest officer of the Army in the Balkans and was directly subordinated to Hitler and or the OKW. He received executive power for the German occupied territories of Greece and Serbia. To help him in its application that the Commander Serbia, the Commander Saloniki - Aegaean, the Commander Southern Greece, and the Commander of the Island Crete, were subordinated to him.
The tasks of the Armed Forces Commander Southeast consisted in defending in a uniform manner those parts of Serbia and Greece, including the islands before the coast, which were occupied by German troops, against attacks and insurrections. With the exception of operational air warfare, the Armed Forces Commander Southeast had to deal with all problems which arose from the occupation, the establishment of security and supplies as well as from the systems of transportation and communication. Furthermore, he was charged with the supervision of the military administration which was applied by various commanders.
That brought about a decisive change in the position of Field Marshal List. Whereas his activities as Commander of the Twelfth Army had been exclusively of an operation nature and had finally been limited to Greece, he was now charged not only with executive power but also with the supervision of the territorial commanders in Greece and Serbia.
These far reaching powers did not however -- especially as regarded Serbia -- become fully effective. The reason for that was that the Commander Serbia had been granted considerable independence by Fuehrer Directive No. 29 which was issued already on 17 of May. The Commander Serbia stuck to that even after his subordination had been changed.
This is proved inter alia, plainly by the fact that he did not even inform Armed Forces Commander Southeast of the formation of the new Government Nedic nor did he inform him of the arming of the Serbian Gendarmerie.
These efforts to maintain independence were promoted further by the fact that the Commander Serbia who, up till now, had been responsible only to the OKH, continued even after he had been subordinated to the Armed Forces Southeast to receive direct instructions from the OKH, particularly in the field of administration. Also the great distances and the insufficient signal and traffic communications played an important part in this respect. Owing to these conditions it frequently occurred that the Commander Serbia who was stationed in Belgrade received orders from the OKW before his superior, the Armed Forces Commander, had received them, thus making it impossible for him to intervene.
All these circumstances caused Field Marshal List to point out repeatedly in teletypes, which were sent to the OKW about the middle of September, that a uniform command in the southeast was necessary. These requests, which were justified, were recognized in new Fuehrer directives regarding authorities of command in which General Boehme was appointed Commanding General and soon after, in addition, Commander Serbia.
These facts show plainly that until Field Marshal List fell ill, the Commander Serbia went his own way in spite of all orders and did not give up his independence. The same went, in particular, for State Councillor Dr. Turner, the Chief of the Military Administration with Commander Serbia. In his capacity as highest police official in Serbia he was in the closest contact with Himmler from whom he received direct instructions.
In his capacity as State Councillor he had the very best connections with Goering and with the agencies of the four-year plan which also had the right to issue direct instructions in their sphere. Also the Foreign Office, which according to Fuehrer Directive No. 31 had an independent plenipotentiary after the political interests of the Reich, employed Dr. Turner for its purposes. Thus he was, owing to the political power which he enjoyed, in a position to evade to a large extent the influence and control of the Armed Forces Commander Southeast who was far away in Athens. In consequence, all attempts of Field Marshal List, in writing, as well as by word of mouth, to cause Dr. Turner to keep to the official channels were bound to be unsuccessful. These vague relations of authority and the existence of many political agencies, which were not subordinated to the Armed Forces, greatly impeded the efforts of the Armed Forces Commander Southeast. The dictatorial anarchy, which at the time prevailed in Germany, the consequences of which are very hard to understand for anybody who has not himself experienced these conditions, was bound to have a yet greater effect on the administration of the occupied Southeastern areas which were far distant from Germany. Under these difficult conditions, which became increasingly more obvious during the summer and autumn of 1941. Field Marshal List, when he returned from an official journey to Berlin, on 23 June 1941, took over command as Armed Forces Commander Southeast and thus the command authority for the Serbian area as well.
At the same time Field Marshal List took over command authority as Armed Forces Commander Southeast, he was confronted with an entirely changed situation in Serbia.
As soon as the campaign against Russia started, unrest flared up in the Serbian area which, until then, had been almost entirely peaceful. In all parts of the country placards and pamphlets incited to looting, acts of sabotage, and insurrection. Attacks in which explosives were used, destruction of telephone lines and rails, as well as other acts of sabotage of many kinds made it apparent that these were not isolated locally limited actions of bands of robbers such as have always plagued in the Balkans. Soon there after the first attacks on police stations and gendarmerie posts took place, and these grew to a greater extent in the following period. As early as July 1941 the bands systematically started to fight the German occupation troops as well, by ambushing isolated Army vehicles and later even larger columns. During August the situation became increasingly aggravated and at the beginning of September the disturbances had reached such an extent as to make it obvious that a widespread insurrection movement had sprung up in large areas of Serbia. Even from the fact that unrest in the most varied parts flared up with the beginning of the Russian campaign, while up to this time almost complete calm had prevailed in Serbia, it can be seen that Russian influence was the cause. Communist elements and officials were identified as the perpetrators or at least as the instigators. As the unrest went on, the Communist Party in Serbia issued a special directive for partisan warfare. From the existence of this it can clearly be seen that the unrest was a political action directed by Russia. The same explanation applies to the fact that the Serbian here Costa Pecanac, and his followers did not fight with the insurgents, but against them. Draga Mihailovic and the Cetniks led by him also fought for a time with the German Wehrmacht against the Communist partisans.
If, later on, he too, fought against the occupation power, than he was probably led by motives of loyalty to his Fatherland. At any rate, one thing is certain, that Mihailovic also did not work with the Communist partisans, but pursued his own aims by utilizing the unrest unleashed by them. The fighting methods of the Cetniks could also be distinguished from those of the Communist Partisans by the fact that only the Communists committed monstrous acts of terror against their own people.
A centralized "Fatherland Insurgent Movement", as the prosecution seeks so frequently to designate it, is quite out of the question. As I explained thoroughly in my legal statement, all the conditions for this are lacking. The bands, whatever their leanings, at the conclusion of the armistice and the completed occupation of the country, were to be regarded as franctireurs in the sense of the provisions of international law. How then could Field Marshal List ever imagine that the Balkan partisans were members of a "national liberation army"?
May it please the Tribunal Would your Honors please try to place yourself in the position of Field Marshal List at that time?
The campaign against Greece and Jugoslavia was concluded in a few weeks. The conquered countries were occupied. In Jugoslavia an insurgent movement of Communist origin began to manifest itself in ever increasing measure.
When, in such a case, can a soldier recognize at all that his enemy is to be regarded as a legal combatant? Certainly only when he fights in a soldierly fashion -that is, when he fulfills the provisions of the Hague Rules of Land Warfare.
As long as Field Marshal List was in the Balkans, the insurgents never tried to adhere to even one of the four provisions of international law.
1. Even the prosecution has not asserted that already during the first stages of the insurrection - I am now dealing with the period from June to October 1941 -a responsible leadership of the insurgents existed.
2. There could be no question of proper insignia, let alone of a common uniform. According to the representation of the prosecution itself, the partisans appeared in every imaginable kind of dress or disguise.
3. They did not carry arms openly and appeared after a treacherous surprise attack as peaceful farmers or citizens.
4. Instead of the rules of war they applied cruelties. Murders from ambush occurred daily, German prisoners were mutilated and shot; the wounded were castrated, nailed against barn doors, and killed.
How can the prosecution in view of the extensive evidence of the defense seriously contend today the partisans adhered to the rules of war?
5. If your Honors please, that was the situation to be faced by the occupation power.
Court No. V, Case No. VII.
Quite soon after the beginning of unrest in Serbia, the Military Commander in that area discovered that the police and field police initially committed there no longer sufficed for the maintenance of law and order. When all attempts to bring the instigators to reason by means of public appeals and radio addresses failed, when instead the insurgent movement became more and more extensive, Field Marshal List requested troops from the OKW first at the beginning of July 1941.
This precautionary request and its repetition after a further spreading of the insurrection was a matter of course, seen from the military point of view. It would not be justified, however, to draw from this fact the conclusion that the occupation of the country was not an effective one. Once the country was occupied the combat troops were replaced by occupation troops. This very fact, however, shows quite clearly that Serbia was pacified at that time. If unrest broke out later, and the occupation troops which had been sufficient for normal conditions no longer sufficed for a narrow-mesh occupation net and thus for a complete suppression of the insurrection, this situation demanded special counter measures on the part of the Germans. That had nothing whatsoever to do with effective occupation.
At the end of July and during the second half of August 1941, Field Marshal List, during his stay in Serbia, discussed the situation and the commitment of forces with the Military Commander Serbia, the Commanding General of the LXV Corps, and a number of troop commanders. These conferences dealt exclusively with the commitment of troops, as for instance, the combatting of certain sources of unrest. There was no talk of reprisal measures at that time, despite the somewhat tense situation.
Thereafter the situation deteriorated considerably: In August 1941, 242 assaults were reported, the number of German casualties in the first days of September was a multiple of the figure for the whole of the preceding month.
In some places, German troops temporarily lost control of the Court No. V, Case No. VII.
situation. This was true, for instance, of the region around Krupanj. On 2 September 1941, two companies guarding the antimony plant there, had been surrounded by partisans and threatened with extermination by massacre in the event of their refusal to surrender. These companies as well as a field sentry post were completely routed. Because of this incident and numerous other assaults, Field Marshal List ordered on 4 September 1941 that the situation in Krupanj be speedily restored. This order, as is evident from section 2 of the teletype, consisted of instructions to the troops for the liberation of the surrounded companies . The surrounded forces had displayed an irresponsible feeling of confidence and trust, thereby delivering themselves into the hands of the partisans. Hence it was imperative to issue directives to the troops calculated to avoid similar incidents. This teletype of Field Marshal List's mentions neither action to be taken against the civilian population nor reprisal measures.
If 5 weeks thereafter, General Buehme, after having assumed responsibility for the maintenance of law, security and order in his capacity as plenipotentiary General in Serbia, issued a more stringent order, which was the basis for the order of the 342nd Infantry Division, it follows that these orders cannot be regarded as deriving from the teletype dated 4 Sept. 1941. It is, moreover, a moot point whether the two orders which could not possibly be known to the Armed Forces Commander Southeast were ever enforced. According to available reports, there was, in fact, heavy fighting with losses on both sides and Krupanj was destroyed. There is no mention of any executions.
The Krupanj incident did, however, clearly indicate that the German occupation troops had to resort to all means in order to retain control of the situation. If the insurrectionist movement had succeeded in seriously endangering the German occupation, the responsibility of the military leaders, and particularly of Fieldmarshal List, would have risen beyond measure. A collapse of the South-Eastern Front, with the maintenance of which Fieldmarshal List was charged, Court No. V, Case No. VII.
would have meant the loss of the war. It is a matter of historical knowledge that responsible leaders among Germany's opponents, for instance, Churchill, intended to force a decision of the war on the Balkan peninsula. It was Fieldmarshal List's task to prevent such a situation from ever arising.
Given his position and responsibility, what alternative remained to him but to resort to all means? I am firmly convinced that every military leader - of whatever nation - would, in the same position, have arrived at the same decision.
Did not the Allied commanders ruthlessly raid German cities at a time when the war was already won?
Did not General LeClerc threaten the shooting of hostages in a situation which could not, by any stretch of the imagination, be compared with that on the Balkan peninsula?
What military expert will rise and assert that Fieldmarshal List ought not to have issued, or was not compelled to issue the order of 5 Sept. 1941?
Who will seriously advance the argument that Fieldmarshal List did not and was not entitled to regard the directives of this order as a military necessity?
If it please the Tribunal, until he issued the order of 5 Sept. 1941, Fieldmarshal List had not as yet, intervened by issuing orders prescribing the methods to be used in fighting the partisans although Serbia had been a center of unrest since June 1941, although his soldiers were being assaulted every day, mutilated, and murdered - although, day by day, railroad lines and bridges were being blown up and communications dissrupted.
It was obvious that in this situation, the defensive methods of the occupation troops no longer sufficed fully to restore law and order within Serbia.
Since the OKW did not send any troops, although they had been repeatedly requested to do so by General Foertsch in person among Court No. V, Case No. VII.
others and time and again did nothing but demand that stringent measures be taken and that the insurrection speedily suppressed, Fieldmarshal List transferred, to start off with, another infantry regiment with an artillery detachment from Greece to Serbia.
But the decisive effect which the order of 5 September was meant to have on partisan fighting was to be achieved by a change in the methods of fighting which from now on were to be offensive in character. As you have frequently heard during these proceedings, the German soldier hated the insidious fighting methods of the partisans and tried to evade them even though he proved himself very brave in open battle. Now, however, the partisans were to be attacked and beaten.
May it please the Tribunal!
Will you kindly read once again Fieldmarshal List's entire order of September.
You will notice, first of all, that this is a purely military order which concerns methods of fighting and contains directives of a tactical nature. The bands were to be fought on the offensive. In other words the bands were to be attacked. This will become particularly clear to you if you look at point 2b of the order in which there appears the demand that they are to be fought and defeated and that artillery should be used to achieve this object.
One must not imagine that this tactical order was issued, as has been asserted by the prosecution, in order to spread terror and destruction. Its main purpose was to defeat the Serbian insurrection movement once and for all.
If we deal more closely with the contents of the brackets in point 2f, we find that Fieldmarshal List mentions the following possibilities as occasionally necessary.
1) Hanging
2) Burning down of villages which were involved
3) Increased taking of hostages Court No. V, Case No. VII.
4) Deportation of relatives into camps May it please the Tribunal:
I admit openly - without being afraid to cause my client any disadvantages - that the possibilities which are put down in the brackets of point 2f do, at first sight, appear very harsh and stringent owing to the way in which they were put together and owing to the telegraphic style in which they were formulated.
On closer consideration, however, they cease to appear so severe, for:
1) Hanging is a method of execution of death sentences which is customary in England and also, at the present time, in the American Zone of Germany.
2) The buring down of villages, according to Control Council Law No. 10 is a war crime only if not justified by military necessity. Besides it has also been provided for in the American Rules of Land Warfare.
3) Taking of hostages is permissible also according to the American Rules of Land Warfare, which go so far as to permit them to be killed. Increased taking of hostages, however, becomes necessary and permissible if the conduct of the population makes such a measure necessary.
Only the way in which this movement acted has caused the directives as purely defensive measures. They were, however, not brought about by any intention of Fieldmarshal List such as the prosecution claims he had, without even trying to prove this contention.
This order is supposed to have been the cause of "penal expeditions" of the largest extent.
That is not the case.
Apart from the fact - and I shall prove my contention - that it was meant to bring about only such measures as were necessary from a military point of view, it does not contain any directives according to which people should be killed, much less any ratios at which Court No. V, Case No. VII.
that would have to be done.
Neither did it constitute, as has been asserted by the prosecution, the beginning of the retaliation measures. Retaliation measures had already been carried out prior to that time. However, what happened later goes to prove that the order was correctly interpreted.
Dealing with the contents of this order I should, first of all, like to point out that it contains mainly directives; that is, in this order there are not contained any definite rules as to the conduct to be observed, it merely points to what types of action may possibly be undertaken. They may be applied if it should become necessary but they don't have to be. That precisely is the essential difference between "directive" and "order".
A directive may, if necessary, be followed but an order prescribes a definite action. It does not, therefore, allow such latitude for discretion.
That was also the way in which the directives were interpreted by the sub-ordinate command agencies. You find, for instance, the following entry in the war diary of the 65th Corps under the date of 7 September 1941.
"Armed Forces Commander Southeast:
Commander Serbia and Corps Headquarters should immediately make all preparations in order to pacify this country before the beginning of winter Points of view to above."
It is quite obvious that also point 2f of the orders to which the prosecution attaches particular importance, points only to possible types of action which could be employed in the frame of tactical measures if they were necessary from a military point of view. They could be taken as immediate measures in direct connection with combat actions.
The fact that these were only possibilities for actions which had become necessary is shown clearly since they do not appear in the wording of the order but only in brackets and, therefore, constitute Court No. V, Case No. VII.
merely ideas and directives for possible actions which have been put on paper. But to make sure that they would only be applied if and when necessary, the conduct of such combat actions is expressly put into the hands of the divisional commanders, that is, of comparatively old, experienced officers.
4) The arrest and internment of the members of partisan families who support their partisan relatives is permissible at any time for reasons of security especially since Directive No. 38 of the Allied Control Council for Germany of 10 October 1946 provides for the internment of Germans who might possibly become dangerous. The letters "KZ" merely meant collection or internment camp which had nothing whatever to do with the infamous concentration camps.
Thus measures which, according to the prosecution, were too severe, are found to be equalled in the laws of their own country or in such laws as have been issued for occupied Germany. What further explanation of this order can the prosecution ask for?
Are they perhaps going to claim that a man of the disposition and character of Fieldmarshal List meant this order to bring about unlawful acts of hanging, burning down of villages not justified by military necessity, indiscrimate taking of hostages and internment of harmless relatives?
If that is the case let them prove it.
May it please the Tribunal!
Fieldmarshal List frequently mentioned to me that he never found it easy to issue sharp and sometimes stringent orders. That surely must be the case with every officer whose heart is in the right place. Such situations cannot be avoided. Then he must act.
In this case Fieldmarshal List looked on for two and a half months while partisans were committing actions contrary to international law until he decided to issue the order of 5 September. That decision was speeded up by repeated insistence of the OKW to take stringent measures - there even was a telephone call to that effect Court No. V, Case No. VII.