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Source:
United
Nations War Crimes Commission. Law Reports of Trials of War Criminals.
Volume VIII, 1949
CASE No. 47
THE
HOSTAGES TRIAL
TRIAL
OF WILHELM LIST AND OTHERS
UNITED STATES
MILITARY TRIBUNAL, NUREMBERG
Part
I
Part I Part
II Part III Part
IV Part V Part
VI
Introduction
Outline of the Proceedings
The Accused and the
Indictment
The Evidence Before the Tribunal
List
Kuntze
p.38
8TH
JULY, 1947, TO 19TH FEBRUARY,
1948 The
accused were all former high-ranking German army officers and they were
charged with responsibility for offences committed by troops under their
command during the occupation of Greece, Yugoslavia, Albania and Norway,
these offences being mainly so-called reprisal killings, purportedly
taken in an attempt to maintain order in the occupied territories in the
face of guerrilla opposition, or wanton destruction of property not
justified by military necessity. The accused were charged with having
thus committed war crimes and crimes against humanity.
One defendant committed suicide before the arraignment, and a
second became too ill for trial against him to be continued. Of the
remaining accused, two were found not guilty and eight guilty on various
counts. Sentences imposed ranged from imprisonment for life to
imprisonment
for seven years. In its judgment the Tribunal dealt with a number of
legal issues, including the legality of the killing of hostages and
reprisal prisoners, the extent of responsibility of commanders for
offences committed by their troops and the degree of effectiveness of
the plea of superior orders.
A.
OUTLINE OF THE
PROCEEDINGS
1. THE ACCUSED AND THE
INDICTMENT
The
persons against whom the Indictment in this trial was drafted were
the
following: Wilhelm List, Maximilian von Weichs, Lothar Rendulic, Walter
Kuntze, Hermann Foertsch, Franz Boehme, Helmuth Felmy, Hubert Lanz,
Ernst Dehner, Ernst von Leyser, Wilhelm Speidel, and Kurt von Geitner.
The
defendant Franz Boehme committed suicide prior to the arraignment ’ of
the defendants, and the Tribunal ordered his name to be stricken from
the list of defendants contained in the indictment. The defendant
Maximillian von Weichs became ill during the course of the trial and,
after it had been conclusively ascertained that he was physically unfit
to appear in court before the conclusion of the trial, his motion that
the proceedings be suspended as to him was sustained. The Tribunal ruled
that “ This
p.3
holding
is without prejudice to a future trial of this defendant on the charges
herein made against him if and when his physical condition permits.”
The defendants were accused of offences alleged to have been committed
by them while acting in various military capacities. The Indictment
drawn up against them was a relatively lengthy one, and may be
summarised in the following words taken from the Judgment of the
Tribunal :
“
In this case, the United States of America prosecutes each of the
defendants on one or more of four counts of an indictment charging that
each and all of said defendants unlawfully, wilfully and knowingly
committed war crimes and crimes against humanity as such crimes are
defined in Article II of Control Council Law No. 10. They are charged
‘with being principals in and accessories to the murder of thousands
of persons from the civilian population of Greece, Yugoslavia, Norway
and Albania between September 1939 and May 1945 by the use of troops of
the German Armed Forces under the command of and acting pursuant to
orders issued, distributed and executed by the defendants at bar. It is
further charged that these defendants participated in a deliberate
scheme of terrorism and intimidation wholly unwarranted and unjustified
by military necessity by the murder, ill-treatment and deportation to
slave labour of prisoners of war and members of the civilian populations
in territories occupied by the German Armed Forces, by plundering and
pillaging public and private property, and wantonly destroying cities,
towns and villages for which there was no military necessity. . . .
“
Reduced to a minimum of words, these four counts charge :
“
1. That defendants were principals or accessories to the murder of
hundreds of thousands of persons from the civilian population of Greece,
Yugoslavia and Albania by troops of the German Armed Forces ; that
attacks by lawfully constituted enemy military forces and attacks by
unknown persons, against German troops and installations, were followed
by executions of large numbers of the civilian population by hanging or
shooting without benefit of investigation or trial ; that thousands of
non-combatants, arbitrarily designated as ‘ partisans,’ ‘
Communists,’ ‘ Communist suspects,’ ‘ bandit suspects ’ were
terrorised, tortured and murdered in retaliation for such attacks by
lawfully constituted enemy military forces and attacks by unknown
persons ; and that defendants issued, distributed and executed orders
for the execution of 100 ‘ hostages ’ in retaliation for each German
soldier killed and fifty ‘ hostages.’ in retaliation for each German
soldier wounded.
“
2. That defendants were principals or accessories to the plundering
and
looting of public and private property, the wanton destruction of
cities, towns and villages, frequently together with the murder of
the inhabitants thereof, and the commission of other acts of devastation
not warranted by military necessity, in the occupied
territories
of Greece: Yugoslavia, Albania and Norway, by troops
of
the German Armed Forces acting at the direction and order of these
defendants ; that defendants ordered troops under their command
to burn, level and destroy entire villages and towns and
p.
36
thereby
making thousands of peaceful non-combatants homeless and destitute,
thereby causing untold suffering, misery and death to large numbers of
innocent civilians without any recognised military necessity for so
doing.
“
3. That defendants were principals or accessories to the drafting,
distribution
and execution of illegal orders to the troops of the German Armed
Forces which commanded that enemy troops be refused quarter
and be denied the status and rights of prisoners of war and surrendered
members of enemy forces be summarily executed ; that defendants
illegally ordered that regular members of the national armies
of Greece, Yugoslavia and Italy be designated as ‘partisans,’
‘
rebels,’ ‘ communists ’ and ‘ bandits,’ and that relatives
of members of such national armies be held responsible for such
members’ acts of
warfare, resulting in the murder and ill-treatment of thousands of
soldiers, prisoners of war and their non-combatant relatives.
“ 4. That defendants were principals or accessories to the
murder, torture, and systematic terrorisation, imprisonment in
concentration camps, forced labour on military installations, and
deportation to slave labour, of the civilian populations of Greece,
Yugoslavia and Albania by troops of the German Armed Forces acting
pursuant to the orders of the defendants ; that large numbers of
citizens-democrats, nationalists, Jews and Gypsies-were seized, thrown
into concentration camps, beaten, tortured, ill-treated and murdered
while other citizens were forcibly conscripted for labour in the Reich
and occupied territories.
“
The acts charged in each of the four counts are alleged to have been
committed wilfully, knowingly and unlawfully and constitute violations
of international conventions, the Hague Regulations, 1907, the laws and
customs of war, the general principles of criminal law as derived from
the criminal laws of all civilised nations, the internal penal laws of
the countries in which such crimes were committed, and were declared,
recognised and defined as crimes by Article II of Control Council Law
No. 10 adopted by the representatives of the United States of America,
Great Britain, the Republic of France and the Soviet Union.”
The
accused pleaded not guilty.
2.
THE
EVIDENCE BEFORE THE TRIBUNAL
The
Tribunal made the following remarks concerning the evidence placed
before it :
“
The evidence in this case recites a record of killing and destruction
seldom exceeded in modern history. . . . It is the determination of the
connection of the defendants with the acts charged and the
responsibility which attaches to them therefore, rather than the
commission of the acts, that poses the chief issue to be here
decided.”
The
Tribunal continued :
“
The record is replete with testimony and exhibits which have been offered
and received in evidence without foundation as to their
p.37
authenticity
and, in many cases where it is secondary in character, without proof of
the usual conditions precedent to the admission of such evidence. This
is in accordance with the provisions of Article VII, Ordinance No. 7,
Military Government, Germany (Footnote 1:
See Vol. III of
these Reports,
pp. 114 and
118. In general, for the United States law and practice on war crime
trials, see that volume, pp.
103-20.), which provides
' The tribunals shall not be bound by technical rules of procedure, and
shall admit any evidence which they deem to have probative value. Without limiting the foregoing general rules, the following
shall be deemed admissible if they appear to the tribunal to contain
information of probative value relating to the charges, affidavits,
depositions, interrogations, and other statements, diaries, letters, the
records, findings, statements and judgments of the military tribunals
and the reviewing and confirming authorities of any of the United
Nations, and copies of any document or other secondary evidence of the
contents of any document, if the original is not readily available or
cannot be produced without delay. The tribunal shall afford the opposing
party such opportunity to question the authenticity or probative value
of such evidence as in the opinion of the tribunal the ends of justice
require.' This Tribunal is of the opinion that this rule applies to
the competency of evidence only and does not have the effect of giving
weight and credibility to such evidence as a matter of law. It is still
within the province of the Tribunal to test it by the usual rules of law
governing the evaluation of evidence. Any other interpretation would
seriously affect the right of the defendants to a fair and impartial
trial. The interpretation thus given and consistently announced
throughout the trial by this Tribunal is not an idle gesture to be
announced as a theory and ignored in practice-it is a substantive right
composing one of the essential elements of a fair and impartial
adjudication.
“
The trial was conducted in two languages, English and German, and
consumed 117 trial days. The prosecution offered 678 exhibits and the
defendants 1025 that were received in evidence. The transcript of the
evidence taken consists of 9,556 pages. A careful consideration of this
mass of evidence and its subsequent reduction into concise conclusions
of fact, is one of the major tasks of the tribunal.
“
The prosecution has produced oral and documentary evidence to sustain
the charges of the indictment. The documents consist mostly of orders,
reports and war diaries which were captured by the Allied Armies at the
time of the German collapse. Some of it is fragmentary and consequently
not complete. Where excerpts of such documents were received in
evidence, we have consistently required the production of the whole
document whenever the Defence so demanded. The Tribunal and its
administrative officials have made every effort to secure all known and
available evidence. The Prosecution has repeatedly assured the tribunal
that all available evidence, whether favourable or otherwise, has been
produced pursuant to the Tribunal’s orders.
“ The reports offered consist generally of those made or
received by the defendants and unit commanders in their chain of
command.
p.38
By
the general term ‘ orders ’ is meant primarily the orders,
directives and instructions received by them or sent by them by virtue
of their position. By war diaries is meant the records of events of the
various units which were commanded by these defendants, such war diaries
being kept by the commanding officer or under his direction. This
evidence, together with the oral testimony of witnesses appearing at the
trial provides the basis of the prosecution’s case.
“
The Defence produced much oral testimony including that of the
defendants themselves. Hundreds of affidavits were received under the
rules of the tribunal. All affidavits were received subject to a motion
to strike if the affiants were not produced for cross-examination in
open court upon demand of the opposite party made in open court.”
The
following paragraphs contain a summary of the evidence relating to the
individual accused :
(1)
List
List,
was Commander-in-Chief of the Twelfth Army during the German invasion of
Yugoslavia and Greece, and, in addition thereto, in June 1941, became
the Wehrmacht Commander Southeast, a position which he retained until
illness compelled his temporary retirement from active service on 15th
October, 1941. In the latter position he was the supreme representative of the Wehrmacht in the Balkans and exercised executive authority in the
territory occupied by German troops. Among the duties assigned to him
was the safeguarding of the unified defence of those parts of Serbia and
Greece, including the Greek Islands, which were occupied by German
troops, against attacks and unrest. The defendant Foertsch, who had
become Chief of Staff of the Twelfth Army on 10th May, 1941,
continued as Chief of Staff to the defendant List in his new capacity as
Wehrmacht Commander Southeast.
The
evidence showed that, soon after the occupation by German forces of
Yugoslavia and Greece, resistance on the part of Yugoslav and Greek
guerrillas began, in the course of which German prisoners captured by
the resistance forces were tortured, mutilated and killed, and the
German military position threatened. Attacks on German troops and acts
of sabotage against transportation and communication lines progressively
increased throughout the summer of 1941 and even at this early date the
shooting of innocent members of the population was commenced as a means
of suppressing resistance.
By
5th September, 1941, the resistance movement had developed
further and the defendant List issued an order on the subject of its
suppression. In this order,
he said in part : “ In regard to the above the following aspects are
to be taken into consideration :
Ruthless
and immediate measures against the insurgents, against their accomplices
and their families. (Hanging, burning down of villages involved, seizure
of more hostages, deportation of relatives, etc., into concentration
camps.)”
On
16th September, 1941, Hitler, in a personally signed order,
charged
the
defendant List with the task of suppressing the insurgent movement in
p.39
the
Southeast. This resulted in the commissioning of General Franz Boehme
with the handling of military affairs in Serbia and in the transfer of
the entire executive power in Serbia to him. This delegation of
authority was done on the recommendation and request of the defendant
List to whom Boehme remained subordinate. Boehme was shown to have
issued orders, dated 25th September and 10th
October, 1941, to the units under his command in which he ordered that
“ the whole population ” of Serbia must be hit severely ; and that
“ In all commands in Serbia all Communists, male residents suspicious
as such, all Jews, a certain number of nationalistic and democratically
inclined residents are to be arrested as hostages, by means of sudden
actions,” and “ If losses of German soldiers or Volksdeutsche occur,
the territorial competent commanders up to the regiment commanders are
to decree the shooting of arrestees according to the following quotas :
(a)
For each killed or murdered German soldier or Volksdeutsche (men, women
or children) one hundred prisoners or hostages, (b) For each wounded
German soldier or Volksdeutsche 50 prisoners or hostages.”
On 16th
September, 1941, Fieldmarshal Keitel, Chief of the High Command of the
Armed Forces, issued a directive pertaining to the suppression of the
insurgent movement in occupied territories, which List caused to be
distributed to his subordinate commanders. This order stated :
“
Measures taken up to now to counteract this general communist insurgent
movement have proven themselves to be inadequate. The Führer now has
ordered that severest means are to be employed in order to break down
this movement in the shortest time possible.
Only in this manner, which has always been applied successfully
in the history of the extension of power of great peoples can quiet be
restored.
“ The following
directives are to be applied here : (a) Each incident of insurrection
against the German Wehrmacht, regardless of individual circumstances,
must be assumed to be of communist origin. (b) In order to stop these
intrigues at their inception, severest measures are to be applied
immediately at the first appearance, in order to demonstrate the
authority of the occupying power, and in order to prevent further,
progress. One must keep in mind that a human life frequently counts
for naught in the affected countries and a deterring effect can only be
achieved by unusual severity. In such a case the death penalty for 50 to
100 communists must in general be deemed appropriate as retaliation for
the life of a German soldier. The manner of execution must increase the
deterrent effect. The reverse procedure-to proceed at first with
relatively easy punishment and to be satisfied with the threat of
measures of increased severity as a deterrent does not correspond with
these principles and is not to be applied.”
On
4th October, 1941, the defendant List directed the following
order to General Bader, one of the Generals under his command :
“
The male population of the territories to be mopped up of bandits is to
be handled according to the following points of view :
“
Men who take part in combat are to be judged by court martial.
“
Men in the insurgent territories who were not encountered in
battle,
are to be examined and- -.
p.40
“
If a former participation in combat can be proven of them to be judged
by court martial.
“ If
they are only suspected of having taken part in combat, of having
offered the bandits support of any sort, or of having acted against the
Wehrmacht in any way, to be held in a special collecting camp. They are
to serve as hostages in the event that bandits appear, or anything
against the Wehrmacht is undertaken in the territory mopped up or in
their home localities, and in such cases they are to be shot.”
After
the issuance of the foregoing orders, the shooting of innocent members
of the population increased and a large number of reprisals against the
population were carried out on the basis of the 100 to 1 order. Among
the evidence appeared facts relating to a reprisal shooting at a village
near Topola, to which the Tribunal made reference in its
judgment.(Footnote 1: See pp. 65-6)
This instance of shooting was carried out by the orders of General
Boehme issued on 4th October, 1941, and on 9th
October, 1941. General Boehme informed the defendant List as follows :
“ Execution by shooting of about 2,000 Communists and Jews in reprisal
for 22 murdered of the Second Battalion of the 421st Army
Signal Communication Regiment in progress.” Several reports of
reprisal shootings were also made to List by the Security Police and
S.D.
There
was no evidence, however, that the “ Commissar Order” of 6th
June,
1941,
requiring the killing of all captured Commissars was issued, distributed
or
executed in the occupied territory under the command of List while
he held the position of Armed Forces Commander Southeast, or that List
was in any way responsible for the killing of Commissars merely because they
were such. The evidence sustained the contentions of List that he never
himself
signed an order for the killing of hostages or other inhabitants, or
fixed a ratio determining the number of persons to be put to death for each
German soldier killed or wounded, and that many of these executions
were
carried out by units of the S.S., the S.D., and local police units which
were
not tactically subordinated to him. That he was not in accord with many
of the orders of the High Command of the Armed Forces with reference
to the pacification of Yugoslavia and Greece was also shown. That
his appeals for more troops for the subjugation of the growing
resistance movement were met with counter-directives and orders by
Hitler and Keitel to accomplish it by a campaign of terrorism and
intimidation of the population was also established.
(ii)
Kuntze
On
or about 24th October, 1941, the defendant Kuntze was
appointed
Deputy
Wehrmacht Commander Southeast and Commander-in-Chief of
the 12th Army. It was evident from the record that the
appointment was
intended as a temporary one for the period of the illness of
Fieldmarshal List.
He assumed the command on his arrival in the Balkans on 27th
October, 1941. He was superseded by General Alexander Liehr in
p.41
June
1942 but remained in the position until the arrival of General Loehr on
8th August, 1942.(Footnote 1: In its
Judgment the Tribunal pointed out that October, 1941 “ exceeded all
previous
monthly
records in killing innocent members of the population in reprisal for
the criminal acts of unknown persons,” and added : “ It seems highly
improbable that Kuntze could step
into the command in the Southeast in the midst of the carrying out and reporting
of ’ these
reprisal actions without gaining knowledge and approval.”.) Reports made to the defendant Kuntze,
which were shown in the evidence, revealed that on 29th
October, 1941,76 persons were shot in reprisal in Serbia ; on 2nd
November, 1941, 125 persons were shot to death at Valjevo ; and on 27th
November, 1941, 265 Communists were shot as a reprisal measure at
Valjevo. Under date of 31st October, 1941, the Commanding
General in Serbia, General Boehme, recapitulated the shootings in Serbia
in a report to Kuntze as follows : “ Shootings : 405 hostages in
Belgrade (total up to now in Belgrade, 4,750). 90 Communists in Camp
Sebac. 2,300 hostages in Kragujevac. 1,700 hostages in Kraljevo.” In a
similar report under date of 30th November, 1941, General
Boehme reported to Kuntze as follows : “ Shot as hostages (total) 534
(500 of these by Serbian Auxiliary Police).” Many other similar
shootings were shown to have taken place.
In
a directive of 19th March, 1942, Kuntze made the following
order :
“
The more unequivocal and the harder reprisal measures are applied from
the beginning the less it will become necessary to apply them at a later
date. No false
sentimentalities! It is preferable that 50 suspects are liquidated than
one German soldier lose his life. Villages with Communist Administration
are to be destroyed and men are to be taken along as
hostages. If it is not
possible to produce the people who have participated in any way in the
insurrection or to seize them, reprisal measures of a general kind may
be deemed advisable, for instance, the shooting to death of all male
inhabitants from the nearest villages, according to a definite ratio
(for instance, one German dead-100 Serbs, one German wounded-50
Serbs).” Further shootings of large numbers of reprisal prisoners and
hostages were reported to Kuntze after the issuance of this directive.
Although
he was advised of these killings of innocent persons in reprisal for the
actions of bands or unknown members of the population, Kuntze not only
failed to take steps to prevent their recurrence but urged more severe
action upon his subordinate commanders. In many cases persons were shot
in reprisal who were being held in collecting camps without there being
any connection whatever with the crime committed, actual, geographical
or otherwise. Reprisal orders were not grounded on judicial findings.
Evidence
brought relating to the alleged ill-treatment of Jews and other
racial
groups within the area commanded by the defendant Kuntze during the
time he was Deputy Wehrmacht Commander Southeast proved the collection
of Jews in concentration camps and the killing of one large group
of Jews and Gypsies shortly after the defendant assumed command in
the Southeast by units that were subordinate to him. The record did not show
that the defendant ordered the shooting of Jews or their transfer to a
collecting camp. The evidence did show, however, that he received
reports
that units subordinate to him carried out the shooting of a large
p.42
group
of Jews and Gypsies. He had knowledge that troops subordinate to him
were collecting and transporting Jews to collecting camps, and it was
not shown that the defendant acted to stop such practices.
There was evidence that the offences proved against Kuntze were
ordered by his superiors and that, like List, he was impeded by the
operations within his area of command of organizations receiving their
orders direct from Berlin.
Part I Part
II Part III Part
IV Part V Part
VI
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