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.
on the same day and that after he had expressed to the OKW his objections as strongly as possible in writing and by word of mouth, finally the order was issued as a purely defensive action, to be in force as can be seen from the contents until the country had been pacified.
In the evaluation of this order you will have to take into account, above all, that the main point was not only to defeat the insurrection but also to protect his own soldiers against insidious attack. Many hundreds had fallen already.
Thus, two matters of decisive importance were at stake at the beginning of September 1941. The Southeastern front was to be held on one hand, and the security and life of the German soldier on the other hand.
In such a situation a military commander must be able to decide and implement the decision to save lives for the future by taking short term stringent measures just in the beginning. Similar considerations have moved the American leadership to drop atom bombs on Japan, the effect of which could not be compared to those of the order of 5 September. And yet there is supposed to be a subtle destination; that is, in the case of the bombs, reasons of military necessity are supposed to be acknowledged, not, however, in the case of Fieldmarshal List. I am unable to detect any reason which would warrant such a distinction.
On 5 September, the order was transmitted to commands controlling areas in which there was imperative need for action against the partisans. The order was not directed, for example, to General Boehme, at that time still Commanding General of a Corps (XVIII Corps) in Greece, or to the Commander Southern Greece, or to Crete? These facts seem to me of special significance in determining the intentions of Fieldmarshal List at the time.
The prosecution has ascribed events, which form the subject matter in this case, to the order dated 5 September 1941, and, for that reason, wishes to burden Fieldmarshal List with responsibility Court No. V, Case No. VII.
for them. I object to this contention in the strongest terms possible. It is evident, on the prosecution's own showing, that, as early as 16 September 1941, an OKW-order was distributed, to which - as I shall proceed to show - the events charged are to be attributed. I shall return to this at a later stage of my argument.
It soon turned out, however, that Fieldmarshal List hopes for a speedy restoration of internal peace to be attained by a short term program of fighting the partisans, using the most stringent measures, thus nipping the insurrectionist movement in the bud, were not fulfilled.
New reports on events in Serbia as well as personnel matters in that country caused Fieldmarshal List - only 8 days after he had issued his order dated 5 September 1941 - to apply to the OKW for the appointment of a Plenipotentiary Commanding Ganeral for Serbia. This appointment was to make for uniform and responsible leadership in Serbia, an area remote from the Headquarters of the Armed Forces Commander Southeast? At the same time List called for enforcements, at least a combat division with armored equipment.
of the Armed Forces Commander Southeast. At the same time List called for reinforcements, at least a combat division with armored equipment.
General Goehme was suggested for the part of Plenipotentiary Commanding General. At that time, he and his staff, Hq. XVIII Corps, were in Greece and available for further assignment. Up to that date, Boehme had proved himself a calm and reliable leader. Being a student of Balkan affairs, he had a good command of the vernacular. These reasons alone were decisive for Field Marshal List. His suggestion was approved on 16 September 1941. On 18 September 1941, General Boehme paid a farewell visit to Field Marshal List. On this occasion he received a purely tactical order to quell the insurrection. So, that, effective from 19 September, the direction of all military operations in Serbia as well as all executive power was vested in General Boehme.
In this connection, I should like to commend the following fact to the attention of the Tribunal:
Immediately upon his arrival in Belgrade, on 21 September 1941, General Boehme received a memorandum from Dr. Turner, administrative chief to the Military Commander, who did not have general acces to General Boehme. I have previously mentioned the fact that Dr. Turner acted on his own initiative. He very quickly succeeded in exerting influence upon General Boehme, for, only a few days after his assumption of command, General Boehme issued orders which complied with the proposals submitted by Dr. Turner, and, in part even detained the latter's wording. Thus, General Boehme, as early as 22 Sept. 1941, ordered the mopping up of the Drina- Save bend in accordance with the stringent measures advocated by Dr. Turner. Another order by General Boehme dated 25 Sept. 1941 aimed at forcing the entire population of the DrinaSave bend unfit for military service to go south into the Cer-mountains. It was only this order that came to the knowledge of Field Marshal List who prevented its being carried out. This goes to prove that Field Marshal List condemned every measure against the population not dictated by military necessity. Already on an earlier occasion he had objected to the evacuation of an area proposed by General Boehme.
The OKW transmitted the Fuehrer Order of 16 Sept. 1941, concerning the Communist insurrectionist movement in the occupied territories, simultaneously with the Fuehrer Directive appointing General Boehme. Before turning to this order, I should like, if the Tribunal please, to make a preliminary remark. I would ask the Tribunal to consider only the copy submitted by me because the copy presented as evidence by the prosecution is incomplete. The copy contained in my document book is a copy of this order which the American prosecution presented as evidence to the International Military Tribunal of the first Nurnberg Trial.
I have a special reason for attaching great importance to this document. The complete order does show the distribution of the order which is not revealed by the copy used by the prosecution in this Trial.
In the first place, I think it is very important to note that, according to the distribution, copies 1-5 were intended for the Southeastern Front.
That is the first point I wanted to make in my initial remarks. In a different context to which I shall have occasion to refer very soon, we shall find that this circumstance is of crucial importance. The order dated Sept. 16, itself contains directives.
The decision as to whether and to what extent these directions were to be applied was to be left to the judicious exercise of the competent commander's discretion. Hence there can be no question of an explicit order calculated to result in executions by shooting at the ratio of 1:100 and/or 1:50 in every case regardless of the circumstances.
This directive was issued by the OKW, i.e., Hitler's military staff in his capacity as Supreme Commander of the Armed Forces and Head of State. Field Marshal Keitel signed it.
Your Honors, I submit that in the Fall of 1941 Hitler's authority was still unimpaired; neither had he as yet blatantly flouted the provisions of international law.
His commanders proceeded at that time on the assumption that all of Hitler's orders transmitted to them had been examined and found to be in order with respect to their validity under international law.
This explains why Field Marshal List had no doubts in relations to their legal aspect. If, nevertheless, he did lodge an objection against this order with the OKW, then it was only because he repudiated it at heart, for reasons of humanity, which had nothing to do with legal considerations. Previously he had repeatedly informed the OKW in writing and orally that he wanted troops in order more speedily to quell the insurrectionist movement and that he did not approve of the stern action demanded by the OKW. These representations, as well as the oral representations made on his behalf by General Foertsch with the OKW, were unsuccessful. It was for him to obey, he was told; not he, but Hitler and the OKW, bore the responsibility for all the measures ordered.
A last objection to the order was likewise overruled. There was nothing more that Field Marshal List could do.
What had actually happened up to now? An order which Field Marshal List repudiated for reasons of humanity and the vevoking of which he was striving to secure had been transmitted to him by order of his Supreme Commander and Head of State. Several times he had remonstrated without success.
May I, at this stage, draw the attention of the Tribunal to the fact that Anglo-Saxon Law does permit officials and civil servants to remonstrate against orders by their superiors. If has reconstrations are overruled, the remonstrator has to submit and carry out the order to which he objected. The German Army was governed by the same principles.
The Prosecution clearly does not wish to hold Field Marshal List responsible for this Hitler order. But they do charge him with its transmission which they regard as a war crime.
May it please the Tribunal Now, Field Marshal List did not transmit this Hitler order dated 16 Sept.
1941, as I shall proceed to show with the aid of the document itself.
Let me make one preliminary remark:
A binding order can only be issued by a duly authorized agent.
This authority to issue orders is termed the power of command (Kommandogewalt).
Now an order is only authentic if the person vested with the power of command, in the exercise of this power within his sphere of competence, demands the commission of a certain act.
As the transmission of an order again constitutes an order, a transmission can only be presumed if the party receiving the order, in making the order of a superior known to his subordinates, acts in the exercise of his power of command.
I have to attach the greatest importance to this statement, that is, that transmission of an order can only be presumed if the recipient of the order exercises his power of command in its transmission, because any other view would be untenable.
In determining whether Field Marshal List did transmit the Hitler order dated 16 Sept. 41, I would ask the Tribunal to turn again to the distribution list as marked on this order. I had already, at any earlier stage of my argument, directed the Tribunal's attention to the distribution.
It is evident from the distributor that 5 copies of the order were sent to the Southeastern Front. The first copy was intended for the Armed Forces Commander, Southeast, the 2nd--5th copies for the commanders of Serbia, Salonika-Aegacan, Southern Greece, and the Commanding Officer of the island of Crete.
It was, then, not a question of the Armed Forces Commander Southcast having to transmit an order directed to him to his subordinate commands.
The order was directly addressed to the commands listed in the distribution. In this case the OKW issued a direct order.
It might, however, be inferred from the distributor that the 2nd 3rd, 4th & 5th copies of the order were channeled through the command of the Armed Forces Commander Southeast although the recipients of these copies were designated.
How would such an concurrence have to be evaluated?
Your Honors:
I do not know whether one of the judges on this Honorable Tribunal has served as an officer in the American Army. If this were the case and if, in addition, such service had been performed, as well it might, in a higher or in the supreme staff, then this would considerably facilitate a complete understanding and comprehension of what I now wish to expound.
I may, I am sure, take for granted the knowledge that even during, and just because of, pending war operations, the correspondence and clerical work in a military staff assume considerable proportions. This is especially true of an Army staff. There is a records section to sift all incoming papers and distribute incoming, outgoing, and transmit communications.
Courier services are operated for the transmission of official mail between the higher commands. They are not, however, exclusively used for inter-office correspondence between these highest commands but also whenever the one command wishes to send a communication or an order directly to a unit located within the area of the other commend. This procedure is quite intelligible as the higher command cannot possibly maintain direct liaison with everyone of its subordinate units.
If, for instance, the OKW wished to direct an order to the commanding officer of Crete, which only applied to him, then such an order would be sent through official channels. In 1941, such an order would have been channeled via the following commands: OKw - Armed Forces Commander Southeast- Commander Southern Greece - Commanding Officer Island of Crete.
This does not in any way imply that the Chief of every Command through which the order was channeled had seen the order and checked as to whether it was to be transmitted or stopped. Such direct orders were not routed through the Commanders personally but through the records offices attached to their staffs.
If the records office of the Armed Forces Commander Southeast, in examining an incoming order, found that, for instance, copies for subordinate commands were attached, then such copies were as a matter of routine routed through the courier service of the addressee. There was then no question of a transmission of the order concerned along the chain of command, the command merely acted as a clearing office.
How the order dated 16 Sept. 41 was actually routed cannot, today, be ascertained. Both the text and the wording of the distribution list however, make it appear highly probably that the copies were routed to the addressees in the moral fashion; that is, via the staff records offices.
I may invoke the presumption of normal office procedure, adherence to which is a matter of the greatest probability.
It would have been for the prosecution to prove that the order was transmitted along the chain of command.
Even if it should turn out to be correct that the Deputy Chief of Staff channeled the copies without any addendum, this would in no way affect the position. Field Marshal List could only be held criminally responsible if he himself had ordered the transmission of the order. There is no evidence in support of this assumption, in fact probability is all against it. No orders had to be given at the time the 5 copies of the order were received as the addressees were designated on the copies intended for the other commands. Hence there is no question of a transmission of this order by the Armed Forces Commander Southeast or one of his offices; it was a direct order by the OKW to be routed to the commands designated.
It cannot therefore be established that Field Marshal List -- as asserted by the prosecution -- transmitted the order dated 16 Sept. 41 along the chain of command by issuing an order of his own.
We then arrive at the following conclusions:
1. The OKW issued the order dated 16 Sept. 41 and 2. directly distributed it to commands subordinate to Field Marshal list.
Field Marshal List was thus faced with the situation that an order which for reasons of humanity, he repudiated at heart -- as the Tribunal has heard him state -- became effective within his area of command.
What should he do?
Resign? Resignation was forbidden and only possible if it was in accordance with Hitler's wishes.
Rescind the order? He lacked the power and the means to do this. How could he succeed in rescinding the order from his chief of State? He had already made representations without success.
The only possibility remaining to him in this situation was totry to mitigate the effects as far as possible. Even if Field Marshal List could already assume from what he knew of the views of his generals that they themselves would do everything in their power to avoid unnecessary harshness in the practical execution, he, nevertheless, made a special point of it.
Only a short time later, on 4 October, 1941, Field Marshal List issued an order to this effect.
This order which went to the competent commander for Serbia, General Boehme, (and this point I would particularly like to stress), concerned the "male" population in the insurgent areas cleared of partisans; that is, those parts of the population which could be seized under the OKW order of 16 September.
From this order of Field Marshal List Your Honors will see his intention to make a fundamental difference in the treatment of the innocent and the guilty male population.
Those men found to be innocent were to be released in order to go about their business. Only those people should come into the question as hostages who were suspected of belongint to the partisans. Even this meant a limitation of the OKW order. In addition, reprisal measures should only be carried out on hostages with some local connection. But the most decisive point is that although Field Marshal List does speak about the possibility of shooting hostages provided the reason is well-founded, he does not mention a ratio. This was to give the commanders an opportunity to deviate from the OKW instructions and to act on the basis of the order dated 4 October 1941. If Field Marshal List had a proved of ratios or even those contained in the order of 16 September 1941, then his order of 4 October would have been incomprehensible. In that case he would, of course, have referred to the order of 16 September because of the extent of the shootings to be undertaken.
Consequently, the order of 4 October -- as well as the frequent objections --, shows the fundamental sympathetic human attitude of Field Marshal List towards the Serbian people, although they sometimes made it very difficult for him to maintain this attitude on account of the size of the insurgent movement.
May it please the Tribunal The effects of this order of 4 October can be ascertained
PRESIDING JUDGE CARTER: The Tribunal will take its afternoon recess at this time.
(Tribunal in recess until 1515 hours.)