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

 

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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

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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

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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

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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.

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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

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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- -.

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“ 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

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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

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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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