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.)
(A recess was taken until 1515 hours.)
THE PRESIDENT: You may proceed.
DR. LATERNSER:
A short time later.
General Boehme ussied an order dated 9 October 1941. Paragraph I of this order, the contents of which are the same as Paragraph 3e of the OKW order of 16th September 1941, shows that General Boehme knew at this time of the order of 16 September 1941. But he did not, however, refer to it. He certainly urged the ruthless supression of the insurrection by purely military means, and the most severe punishments by courts martial proceedings.
But from this order of General Boehme it is also apparent that he already knew the Field Marshal's List's order of 4 October 1941 because only these men suspected of belonging to the bands were to be retained as hostages. In spite of the OKW order, ratios were not mentioned. This is proof that General Boehme correctly grasped the meaning of the order of 4 October 1941.
On 10 October 1941 General Boehme issued another order containing "additions" to tho OKW order of 16 September 1941. In absolute contradiction to his order from the previous day, he decreed that in his command area the OKW orders were to be carried out in the most sevee form. He further ordered the competent territorial commanders to carry out the ratios of 1:100 or 1:50 mentioned in the OKW order. The OKW order of 16 September 1941 received hereby a rigid form. This made is the duty of the subordinate headquarters to proceed with the shootings at the ordered rate. This order by General Boehme dated 10 October 1941 could not remain without effect.
Numerous orders issued subsequently by his subordinate headquarters referred to this order. His own office too referred to it in its later orders. It became indicative of the tendency of General Boehme throughout his future activity.
The Chief of the Security Police and of the SD in Berlib stressed in his report of 21 October 1941 that it was this order which first "created a completely clear line for rughtless vigorous action by the troops."
This order by General Boehme dated 10 October 1941 was sent to his subordinate agencies. The LXV Corps, whose staff as well as that of General Boehme, was stationed in Belgrade, received it on 13 October 1941. This can be seen from the fact that the Corps passed the order on by teletype the same day.
This order also went for information to the Armed Forces Commander Southeast.
Your Honors will recall that during his examination Field Marshal List stated that he did not know this order. This statement is correct, as I will explain. The passing-on of orders for information to agencies to whom the order was not addressed and to whom the order could not have been addressed because they were superior, is generally not dealt with so quickly as in the case of orders sent to agencies for action. But even if the order was sent by the first available courier service on account of the distance and the bad transport connections, it could not possibly have arrived before Field Marshal List was taken ill. Therefore, Field Marshal List did not knew about this order from General Boehme, He heard about its existence and its contents for the first time here in Nuernberg.
There can be no doubt about this. With the order of 4 October 1941 Field Marshal List considerably mitigated the OKW order of 16 September 1941, although he had no right to do this. How much more would he have done this to an order from a subordinate agency, which wanted, the OKW order rigidly applied in all its harshness.
May it please the Tribunal It could not definitely be established in this trial what considerations led General Boehme to this order of 10 October 1941, which was a flat contradiction of the one dated the previous day.
But one thing is contain; the order of 10 October was based on the OKW order of 16 September to which he expressly refers. And probably the serious crime near Topola which caused the deaths of numerous German soldiers and also Turner's influence can be regarded as external reasons.
In my description on the facts of the case I arrived at the date of Field Marshal List's serious illness. This was 15 October; on 17 October he had to undergo an operation. From 15 October 1941 onwards he performed no official duties whatsoever.
The description of the facts of the case, however, would be incomplete if I did not also dealt with the individual events charged against. Field Marshal List by the prosecution.
These are the incidents near Topola, Kraljevo, Valjovo, Kragujevac.
In addition I shall have to go into the surprise raid against General Lomshar, and the case of Colonel von Stockhausen, the incidents in Skela, Zagreb, Uzice, Grabovac, also some occurences in Greece.
Topola:
On 2 October 1941 a supply unit of the Army Signal Regiment 521 was suddenly attacked by partisans and overwhelmed after a fight. According to the testimony of the witness Krage and amongst others, an affidavit by the eye-witness Kerbler those Germans captured were machine gunned or killed with a coup de grace (the pistol close to the head.) 22 German soldiers lost their lives, a large number were missing.
The Plenipotentiary Commanding General in Serbia, General Boehme at the express instruction of the OKW, ordered the shooting of 2,2000 arrestees. The shooting were carried out on 9 and 11 October 1941 by a detachment of the Signal regiment concerned.
From the report of the leader of the detachment it can be seen that altogether 449 arrestees were shot. The rest of the prosecution documents give me reason to believe that additional shootings took place.
All the reports of the military agencies mention that the shooting of 2,2000 arrestees was ordered and that shooting were in progress. From this formulation it is clearly apparent that it was drawn up in this way with regard to the direct order of the OKW to short 2,200 arrestees. Various affidavits submitted by the defense, as well as the testimony of the witness Krage, confirm the fact that altogether 449 arrestees were shot instead of the ordered number of 2,200. The reports from the Chief of the Security Police and the SD dated 20 and 21 October 1941 alone which moreover do not completely coincide do not prove the shooting to the extent ordered.
Field Marshal List, although he cannot remember definitely, thinks he was informed of the surprise raid by the bands near Topola. The question is only how much he knew about the reprisals and their execution.
The question of whether the Hitler order in this case went directly to Boehme or not, remains open. There is contradictory testimony on this matter which I think probably have been cleared up by submission of the war diaries of the 12th Army and of the Plenipotentiary Commanding General in Serbia.
The defense always endeavoured to do this. Unfortunately, however they did not succeed because in spite of the ruling of the Tribunal they had at their disposal only part of the material kept in Washington.
In any case, the prosecution has offered no proof whatsoever that Field Marshal List had knowledge at that time of the Fuehrer Order which might possibly have gone through his command because the witness Pemsel only testified about a telephone conversation with Colonel Kuebler, while Field Marshal List himself in no way recalled any such incident.
The first report by General Boehme to the Armed Forces Commander Southeast about the shooting of 2,200 arrestees, ordered by him, bears the date of 9 October 1941.
Field Marshal List, however, had left by plane for Crete on the 8 October 1941 and returned only on 11 October 1941 to his headquarters. Thus he could have gained knowledge oh 11 October 1941 at the earliest of the retaliation measures then ordered by General Boehme, that is at a time the shooting of the 449 arrestees had already been completed. It could not be established beyond doubt whether on his return Field Marshal was informed at all-or what extent-about the retaliation measures ordered by General Boehme. He has no recollection about it himself. The entry in the diary of 11 October does not mention the incident In this connection I wish to draw your attention to the following:
According to the documents it is fully established that Field Marshal List after his return from Crete dispatched the Director of Police Loos as advisor in police matters to the Plenipotentiary Commanding General in Belgrade. Loos arrived there on 13 October 1941. Field Marshal List intended to fly to Belgrade on 16 October 1941, in order to gain personal knowledge of the situation prevailing there. The trip did not take place because Field Marshal List fell ill on 15 October.
It will remain a secret what the main reason for the intended trip was. Field Marshal List has no recollection. Could the cause not have been that he wanted to make a personal investigation of the incidents? In view of the personality of Field Marshal List I maintain this to be the only possible interpretation.
In summary it must be said:
The retaliation measures carried out in the Topola case - caused by the behaviour of the partisans -- were neither ordered by Field Marshal List, nor was there any possibility for him to prevent their execution, once the events had taken their course.
Kraljevo.
The prosecution wants to charge Field Marshal List with the incidents in Kraljevo.
From a prosecution document it becomes clear that from 14 October 1941 onwards fighting for the city of Kraljevo took place for several days. The insurgents oven used artillery in these fights.
For further investigation into this case the witness von Sydow was examined who at that time was stationed in Karljevo with his unit. He testified that not the number asserted by the prosecution but that 300 Serbs were shot to death.
As, however, the fighting for Karljevo only started on 14 October 1941 and reports about it to the Armed Forces Commander Southeast bear the dispatch date of 18 October and the receipt stamp of the Armed Forces Commander Southeast of 19 October, Field Marshal List could not have learned of the retaliation measures before he left the service.
Valjevo.
Very similar to this are the facts in the Valjevo case.
The order for the shooting of 2,200 Serbs originates with the Plenipotentiary Commanding General in Serbia. It is dated 19 October 1941 and refers expressly to the order of 10 October 1941.
A report by the 734 Infantry Regiment, however, shows that in the execution of this order altogether "101 men" were executed. In this case, too, proof is lacking that 2,200 Serbs were actually shot to death.
Above all the decisive point is that the incident in question took place after Field Marshal List left the service.
Kragujewac.
The incidents in Kragujevac depict a similar situation.
From the report of the District Headquarters Kragujevac dated 20 October 1941 it becomes clear that the retaliation measures were ordered by General Boehme on 10 October 1941. An order by the Military Administration Chief, Dr. Turner, is also mentioned. Whether or not the ordered number were actually shot to death must remain open to doubt according to the report by the 1st Company of Infantry Regiment 724.
At any rate these shootings were not based on an order from Field Marshal List. They could also not have come to his knowledge because the incident took place on 20 October 1941 - that is, after he left the service.
In summarizing I maintain with regard to these individual cases:
a) The shootings were not executed on the order of Field Marshal List, but were based on orders by the Plenipotentiary Commanding General in Serbia.
b) Field Marshal List did not know of the reprosal measures because -- with the exception of the Topola case -- they occurred after he had left the service.
But even in the Topola case knowledge has not been proven and is only possible for a time which lies after the execution of the counter measures. The radios of the OKW order of 16 September were in no case met.
Similar to this are the facts in the subsequent cases:
The attack on General Lomschar was reported to the Armed Forces Commander Southeast on 18 July 1941. This report was not initialled by Field Marshal List; therefore, it was not submitted to him. The possibility that the incident was reported to him orally can not be excluded.
In connection with the attack, the area was combed-out by police forces according to a directive by the Military Commander Serbia. The Administrative Sub-area Headquarters Uzize ordered on 20 July, to execute 52 Communists as a reprisal move. Therefore these are shootings which were apparently ordered by the Military Commander Serbia.
A note about the shootings is to be found only in the activity report of the 704th Infantry Division which did not, however, go to the Armed Forces Commander Southeast.
If the prosecution were of the opinion that this event was widely discussed and that, therefore, Field Marshal List must have heard about it while he was in Belgrade, then this is a pure guess on the part of the prosecution and lacks all proof. The prosecution therefore, has brought no evidence in this case for the fact that Field Marshal List gained knowledge in any form of the shooting. He certainly did not order it.
In yet another case at the beginning of August 1941, 81 Serbs were shot by Serbian gendarmerie, at the order of Colonel von Stockhausen, the Commander of Sub-area Administrative Headquarters Uzize, in retaliation for an attack on a police car.
Here we are again dealing with an independent order of a Commander of a. Sub-area Administrative Headquarters.
Owing to the temporary ministerial crisis the agency of the Armed Forces Commander Southeast was put in charge of this case on 10 August 1941; that is, at a time when Field Marshal List was absent.
The evidence does not furnish any indication to the effect that Field Marshal List on his return was informed in detail about this event which had occurred several weeks previously. Also in this case it must be stressed that the situation had in the meantime become extremely aggravated and that in consequence there were other problems which took precedence.
Also the events at Skela, in the course of which, according to the available reports, a village was burnt and fifty communists were hanged on 15 August 1941, in retaliation for an attack on a police car occurred during the absence of Field Marshal List. These measures were carried out by independent orders of a subordinate command agency.
The report of the German General at Zagrab about the shootings there reached the Armed Forces Commander Southeast on 10 August 1941, once again at a time when Field Marshal List was absent. It was of purely informative character in view of the fact that the shooting could only have been ordered by the Croation Government itself.
These individual cases can be summarized as follows:
a. In all cases the shootings were ordered by commanders of subordinate agencies, in the last case by order of the Croation Government.
b. The entire evidentiary material does not furnish any indication that these measures were caused by higher orders. They were ordered at a time when Field Marshal List had not issued any orders relating to the fighting of partisans.
c. All these occurrences took place at a time when Field Marshal List was on leave, so that even if any reports should have arrived at the agency of the Armed Forces Commander Southeast he could not have obtained any knowledge of those measures.
d. The prosecution has not proved that these reports were submitted to Field Marshal List after his return.
e. If, however, these occurrences were not caused by any order of Field Marshal List and if he was not informed of then, then they cannot be charged against him either.
This brings me to a group of individual, cases which occurred at a time when, Field Marshal List was present in the Balkans and had command authority as Armed Forces Commander Southeast.
In this connection I can only point to a few cases which appear to no of importance. All of them are either not known to Field Marshal List or he cannot remember them anymore; by virtue of his position they could in many cases not have come to his knowledge. Inasmuch as they were possibly reported to him after all, he could count and had to count on lawful measures by the Commanders especially since also in the army regulations executions were permitted only after proceedings before a military court or a summary court martial. Field Marshal List had to be able to take that view also if the reports did not mention any court proceedings which had taken place prior to the measures. Why should it have occurred to Field Marshal List that crimes might possibly have been committed? Which Military unit perpetrates a crime and immediately reports it to its superior agency?
But also in this case I should like to state that Field Marshal List never in any case issued a retaliation order.
The case Rtany concerns shootings in retaliation for a raid on the mine of the same name. The Sub-area Administrative Commander inwuired from the Commander Serbia on 27 August 1941 and received the reply that those 15 to 20 hostages which had been set aside for that purpose could be shot "should conditions warrant that measure". Thus we are dealing here with correspondence between subordinate command agencies. The reply was made without Field Marshal List' s knowing anything about it, and there was no reference to any order of his because such orders did not exist.
The daily report about the shooting of those 20 communists was not submitted to Field Marshal List or also it would have been initialed by him.