Q. If all the Italians were shot for being in civilian clothes on the 15th of September, and your Ic passed this order on on the 16th of September, can't one assume, General Lanz, that the order is a ratification and approval of the previous executions which occurred the day previously?
A. I don't think so. I don't know what the pre-conditions were which caused the death of these five Italians. I don't know who instigated their shootings. I don't know any details about it.
Q. Well, General Lanz, doesn't the report state the full fact when it says that five Italian members in civilian clothes were rounded up and shot? Isn't that a full statement of the crime which the Italians had committed?
A. I don't think so because the reason is not given.
Q. You don't think the reason is that they were found in civilian clothes?
A. I don't think so, no.
Q. Now, in this order that your Ic passed on, he doesn't mention that the Italians are to be given a trial before they are shot?
A. No, that isn't mentioned here. That's correct.
Q. Have you any idea why he didn't put that in?
A. I can only repeat that on account of this order nobody was shot.
Q. Now, we're going into the Italian capitulation, General Lanz. Did you know, when you went down to Greece, that in July, 1943 Mussolini had been replaced by Field Marshal Badoglio, as head of the Italian Government and as Commander in Chief of the Italian Armed Forces in the field?
A. I know that Mussolini, at the end of July, was no longer Prime Minister or Chief of State.
PRESIDING JUDGE BURKE: At this time we'll take a recess until 1:30 this afternoon.
(The court adjourned at 1215 to resume session at 0130)
Court No. V, Case No. VII.
AFTERNOON SESSION The hearing reconvened at 1330 hours, 26 November 1947.
THE MARSHAL: Persons in the Courtroom will be seated.
The Tribunal is again in session.
PRESIDING JUDGE BURKE: You may proceed, Mr. Fenstermacher.
MR. FENSTERMACHER: Thank you, Your Honor. The Secretary General's representative has not yet produced the original document which Your Honor asked for, but I assume that he will bring it here sometime this afternoon.
PRESIDING JUDGE BURKE: Very well.
MR. FENSTERMACHER: (To the Assistant Secretary General) Is that NOKW-909, Mr. Secretary General?
This refers, Your Honor, to Document Book XIX, Page 110 in the English, Page 132 in the German. We will pass the original document to the Court Interpreters for their translation.
PRESIDING JUDGE BURKE: It will be unnecessary to read the entire translation. The only thing that the Tribunal will be interested in is the last sentence in the paragraph before the words, "At 12:30 hours a light motor boat entered the port," -- the line immediately preceding that.
THE COURT INTERPRETER: "All civilians will be shot, or are to be shot." The German leaves both these interpretations open.
PRESIDING JUDGE BURKE: The correction then indicated by you, Mr. Fenstermacher, is that the word "were" will be changed to "will be" or "are to be?"
MR. FENSTERMACHER: That is my understanding, Your Honor.
PRESIDING JUDGE BURKE: You may proceed.
KARL HUBERT LANZ - Resumed CROSS EXAMINATION - Continued BY MR. FENSTERMACHER:
Q. General Lanz, before the luncheon recess we were talking about the surrender of the Italian units, and I asked you whether you knew that in July Field Marshal Badoglio had replaced Mussolina as head of the Italian Government and Commander in Chief of the Italian Armed Forces, and I believe you said you did know that fact.
A. I said I knew that Mussolina had been overthrown and that his place had been taken by a new personage. I remember now that Field Marshal Badoglio was the man who took Mussolini's place.
Q. And, then, on the 8th of September 1943 I think you said that you heard about the armistice which the Italians had signed with the Allies.
A. That is correct.
Q. Did you know, at that time, that one provision of the Italian armistice provided for the return of the Italian units to Italy?
A. No, I did not know that. The armistice conditions only became known to me in Nurnberg.
Q. Now, when you talked to Vecchiarelli during the night of the 8th and 9th of September what did he tell you about the instructions or orders which he had received from Field Marshal Badoglio?
A. To the best of my knowledge and recollection he did not say anything about it at all.
Q. Did he say that he had authority to surrender his units to you?
A. I don't know whether he expressly said that, but from his whole behavior and from the way in which he negotiated with me I had to assume that. In any case he voiced no misgivings or doubts.
Q. Didn't you assume, General Lanz, that when you heard the Italians had surrendered to the Allies that there was also some provision in that armistice regarding the surrender of Italian units to the Allies?
A. I have to admit that I did not reflect too much about that problem because the relationship with the Allies did not interest me as much as did the relationship between ourselves and the Italians. I don't believe that I had any misgivings or hesitations. Furthermore, my assignment and commission was quite clear.
Q. When did you first hear that Field Marshal Badoglio had ordered his troops to remain with their arms at rest but were to repel any attempts of disarmament?
A. I cannot recall that I heard about it. At least I did not hear about it at that time.
Q. Now, General Gandin told you that his orders were unclear at one point during his negotiations with you. What did you think he meant by that?
A. I thought that possibly he had received contraductory orders or that he hadn't received any orders yet. It also occurred to me that he personally might have a different opinion about the commission which he had received. All that is possible. What he said is that his orders were not clear. This is what I remember.
Q. Didn't you ask him what he meant by that?
A. I did not ask him because immediately afterwards, to the best of my recollection he said to me, "General, please, you give me an order," so to speak, to free him from this unclear situation in which he found himself.
Q. But General Gandin was not subordinate to you, General Lanz. How could you give orders to him?
A. Well, I believe that there is a difference of opinion here. I maintain a different attitude. First of all, General Gandin asked me to give him an order. There is no doubt about that.
Therefore, I had no reason not to do that. Furthermore, in my opinion, after General Vechiarelli had surrendered his army, General Gandin was a prisoner of war of the German Armed Forces. The Italian Army of General Gandin was - there can be no doubt -- subordinate to the XIth Italian High Command. It was a part of this High Command. Furthermore, the third point is that General Gandin found himself in the area under my jurisdiction.
Q. You said that General Gandin was a pro-German Italian officer prior to his resistance to your units. Now, General Lanz, isn't it quite reasonable to assume that what General Gandin meant when he said that his orders were unclear was that he had received orders from Field Marshal Badoglio not to surrender, and, on the other hand, had received orders from Vecchiarelli to surrender? And the fact that he was a pro-German Italian officer is a further indication that he would have been glad to surrender if he had not, in fact, had an order from a higher authority than Vecchiarelli?
A Well in that case. I would have had to expect that General Gandin told me, "I have received an order from General Badoglio which is in contradiction to an order from General Vecchiarelli. Please, what am I to do?" Something to that effect, but he did not say anything about General Badoglio or about an order from General Badoglio. He did not say one word about that.
Q Now the Italian Commandant of Korfu, according to one of your affiants, told your representatives that he too had no authority to surrender his island. What do you suppose he meant by saying that?
A I assume that he was doubtful about what he had to do. To the best of my recollection, the situation of Korfu was that part of the occupation forces there wanted to surrender the island and other parts did not want to do that. The Commandant apparently did not quite know what steps he should take.
Q I made a mistake, General Lanz. It was not one of your affiants who said that but it is contained in your Document Book V at page 29 and it is an excerpt from your own War Diary, and the entry for the 11th of September, 1943, states that those occupying the island of Korfu alleged that they have no orders to surrender from their superior authority. Now, isn't that an indication that the Commandant of Korfu had perhaps no orders at all from Vecchiarelli or perhaps had conflicting orders from Vecchiarelli and Badoglio?
A This question was clarified through the fact that to the best of my knowledge on the 13th of September, the Chief of Staff of the Italian Corps on behalf of the Italian Army came with the German officer to Korfu to the best of my recollection and gave the clear order to lay down arms and to surrender the island. And that eliminated all such contradictions.
Q During all these negotiations with the Italians, they never told you and you never assumed that they had received orders from Badoglio which were in conflict with those which they had received from Becchiarelli?
A Neither did an Italian tell this to me nor do I have any other knowledge about this. I am not going to deny the possibility that might have been the case but it was not known to me. I was not told that, and Gandin undoubtedly was in a position to tell me so had he wished to do that.
Q What other explanation have you for Gandin's conduct, particularly in view of the fact that he was a pro-German and would perhaps have preferred to surrender to the Germans than to resist them?
A My explanation is to the effect that possibly Gandin had originally been on the German side and had wanted to surrender the island but that later on because of a resistance group which had formed in Kephalonia, he saw himself forced to take their part, as he actually did. The possibility further exists that at a later time he received different directives. That is possible but I don't know.
Q General Gandin told you that he couldn't surrender because his orders were unclear, not because there was a group of Italian officers in his division who didn't want him to surrender?
A I believe the way you describe it is not quite correct. I asked him why he wouldn't lay down his arms as all Italians in the army area had done. After all, he had to know the orders of his superior officers. In answer to that, he said that his orders were not clear and immediately afterwards he asked me to please give him an order. From that I had to conclude that the man subordinated himself to me because he had asked me for an order that means, according to military usage, that the person concerned subordinates himself to me and to my authority.
I see no other interpretation. If the situation had been different, he could have told me "I can't do that. I can't surrender because I have a different order from Badoglio and this is the order which I have to carry out," but this was not mentioned.
Q From your map, General Lanz, it appears that the distance between the island of Korfu and Italy is only 110 kilometers and I suppose the distance between Kephalonia and the Italian mainland is somewhat greater than that. Do you happen to know how communications were between the Italian mainland and the islands of Korfu and Kephalonia?
A You mean the Italian communications?
Q Yes, do you know anything about those?
A I could only hazard a guess. I have no exact knowledge. I can assume that there was a radio connection; I don't know whether they had a sea calbe. I wouldn't know that. I am not informed.
Q General Lanz, during the course of your negotiations with Gandin, you made some misrepresentations to him did you not? You told him that if he surrendered, his units would be allowed to return to Italy like all other Italian divisions and you knew that wasn't true, didn't you?
A That was not a false representation. It was my firm conviction. There can be no question of making misrepresentations.
Q Now look at Document Book 13, General Lanz, at page 18 in the German and page 27 in the English. This is Field marshal Keitel's order of the 9th of September, 1943, and you will note on page 18 of the German, this is on page 28 of the English, your Honors, that Italian prisoners of war who did not wish to fight on the German side were to be used in the proportion of seven to one as workers for the construction of the East Wall and you were promising Gandin that his units could return to Italy.
A That was, at the time, my honest conviction when I told him that. I don't know when I received the order which you are having reference to but under no means was it my intention to deceive General Gandin.
Q Now you didn't tell Gandin until the 14th of September that he would be returned to Italy with his units if they surrendered. Do you mean that you didn't receive this order of the 9th before the 14th of September?
You were in constant communication with Army Group E according to your affiants.
A I can't tell you at the moment when I received that order. I don't know it. I can only repeat that I made this offer to General Gandin under my honest conviction that it would be carried out and that I did by no means intend to deceive him.
Q Now on the 15th of September, Lt. Col. Bartsch also promised Gandin that he would be returned to Italy if he peacefully surrendered; and again on the 17th of September you yourself in a leaflet which you distributed from an airplane told the Italian units that if they surrendered they, like their Italian comrades, would be able to return home.
A That was my conviction. Otherwise, I wouldn't have said it.
Q General Lanz, is there anything in either the OKW orders of the 9th or the 11th of the 15th of September which indicated that Italian units which surrendered would be permitted to return home to the Italian mainland?
AAt the moment, I cannot recall it. I don't know it well enough by heart to be able to say so here. I can only say that I did not intend under any circumstances to deceive General Gandin.
Q Now I believe you intimated that if Italy had declared war on Germany at the same time as Gandin resisted your units, you might have considered Gandin's situation a little bit differently. Did I misunderstand you?
A I don't believe that is quite correct. If I understand you correctly, I am not quite clear about what you mean.
Q Well, perhaps I can clarify it. Did the fact that Italy didn't declare war until October 13 have any importance in your mind regarding the treatment which you should give Gandin? In other words, would you have treated Gandin differently if Italy had declared war at the same time as he resisted?
A Of course then the situation would have been entirely different; in that case Gandin and the Italians would have quite openly and frankly been our enemies.
Q And then you would not have considered Gandin a prisoner of war when you had captured him?
A If I had captured General Gandin during any action of war, then he would have been a prisoner of war, that is correct.
Q Now if you will put yourself in General Gandin's position for a minute, do you believe that there is a difference between an order from your superior notifying you to resist disarmament and an order notifying you that war has just been declared on your enemy? Do you think there is a difference between those two situations?
A I am afraid I couldn't follow the trend of that thought. Could you give it again to me please?
Q Do you believe that there is a difference between an order notifying you to resist disarmament and an order from your superior notifying you to wage war against an enemy with whom you had previously been allied?
A In actual practice, I don't believe that difference is as large as it is legally. In my opinion there is a certain difference according to international law. It makes a certain difference after all whether a state of war exists or not, but the salient point is that General Gandin was a German prisoner of war by reason of the fact that the 11th Army of which he was a member capitulated to us and surrendered. That made him a prisoner of war. That is the salient point of the whole problem.
Q General Lanz, if you received an order from Army Group E, on one hand, and an order from Hitler and the OKW on the other hand, whom would you obey if the orders were in conflict?
A I could maintain the point of view that I obey the order of my immediate superior and that it is his affair to take the responsibility for such an order towards higher agencies.
That is his business, not mine. That is why I have an immediate superior.
Q You said, General Lanz, that you considered the Italian units who resisted to be guilty of mutiny.
A Yes, that is what I said.
Q Against whom had the mutiny been committed?
A They had committed mutiny against the power under whose authority they were, by reason of the fact that they were prisoners of war. If they raise their arms against the power whose prisoner of war they are, that is obviously mutiny. I am not in the slightest doubt about that and I am firmly convinced, if German troop units which surrendered to the American forces in 1945--if there had been a division which would have said, "I am not going to participate, I am going to resist against the Americans with arms," then I am very sure the Americans would have drawn the corresponding consequences.
Q Isn't it true, General, that according to the Geneva Convention, prisoners of war who commit wrong or crimes against the power which detains them may be tried by the detaining power but that the protecting power must be informed of the trial and that a death sentence must be executed by the detaining power only after three months after which the protecting power had been notified?
A I don't know that. From the practice which is being pursued in Nurnberg, I cannot draw that conclusion and if I may add this, at that time the situation was not so that I could start to give expert opinions on international law. I am not a man of international law nor am I a jurist. I was merely a soldier who acted according to his best knowledge and belief in a situation which was extremely tense and I had the responsibility.
Q As a general officer, General Lanz, you are supposed to be familiar with the Geneva Convention, are you not?
A Yes, indeed.
Q Now isn't it true that a prisoner of war who commits wrong must be tried only by his peers--that is to say, if a general commits wrong, he is supposed to be tried by general officers?
A In the Fuehrer Order which had been issued, it was expressly stated that in this Particular case, court martial proceedings were to be instituted against the Italians. Furthermore, a particular Fuehrer Order with respect to Kephalonia affair was also in existence.
Q General Lanz, you have drawn an analogy between these Italians who as you say mutinied and prisoners of war who mutinied and I am wondering why, if the analogy is a correct one, you did not also treat these people in accordance with the Geneva Convention regarding prisoners of war, that is to say, before you conducted trials against them, why didn't you inform the protecting power or why didn't you try them by their peers? Or why did you not refrain from executing them within three months after the protecting power was notified?
AAt that time the situation was such that in accordance with the fact a Fuehrer Order was available which said that these Italians were to be treated because of their mutiny with very stringent methods; furthermore, the whole situation was so very tense that I had neither the possibility nor the time to make inquiry with Switzerland which was the protective power in this particular situation.
Q Did you ever feel that the Italians had committed mutiny against their own superiors? Let's say did you consider Vecchiarelli to have considered Gandin to have committed mutiny against Vecchiarelli?
A Yes, he did that also. He committed mutiny against Vecchiarelli and against me, against both of us in my opinion.
Q If Gandin had mutinied against Vecchiarelli, why didn't you allow Vecchiarelli's representatives to participate in the court martial trial of those officers?
A Because the fact that he committed mutiny against Vecchiarelli was merely in the background of events. The mutiny was in the first place directed against us because he, as a prisoner of war, had raised arms against us, the detaining power, although I tried everything I could to deter him from using force.
Q Would you say that Gandin also committed mutiny against Badoglio?
A I have to add here I was not particularly interested in that, I did not stress the case from that angle.
Q Did you wonder how the Allies might treat Italians who had fought with the Germans in violation of Badoglio's orders if the Allies had captured such soldiers? How would you, as a general officer, have expected the Allies to treat such Italian soldiers on their capture?
AAll I can say is I would have left that to the Allies. I can at this moment not answer such a very difficult question from my point of view.
Q Now as a matter of fact, General Lanz, the OKW didn't consider mutiny at all here, did they? They considered the Italian resisters as insurgents not mutineers.
A I believe in the affidavit of General von Buttler it is expressly stated that Hitler regarded these people as mutineers and that therefore he gave the order to shoot all these people.
Q Well now, will you look at the Keitel order of 15 September 1943 which is in Document Book 13 on page 29 of the German and page 42 of the English? As a matter of fact, General Lanz, in your volume the paragraph I am referring to is on page 31 of the German; this is page 46 of the English, Your Honors.
You will note here that there is a reference to an ultimatum which is supposed to make it clear that the Italians' commanders responsible for the resistance will be shot as franctireurs. There is no reference in this order to mutineers?
A I know that article but there had been a special order issued by the Fuehrer for the Kephalonia case and this shows that Hitler himself regarded these people as mutineers.
Q Now that you turn to page 28 in your volume, page 40 of the English, you will note that General Rendulic in a communication to the 118th Jaeger Division states that General Roncaglia is to be shot as a franctireur. When did you first consider these Italian resisters as mutineers, General Lanz? Is that your idea or is it Dr. Sauter's?
A That was Adolf Hitler's idea.
Q Wouldn't Adolf Hitler have communicated that idea to Field marshal Keitel and wouldn't Keitel have mentioned it in his order of 15 September instead of mentioning franctireurs?
A I don't know whether this order of the 15th had not already been issued when the matter was reported in the Fuehrer's headquarters, because this order was received later. The whole development in Kephalonia took place after that, after I had tried for days to move General Gandin to deliver up his arms peacefully.
Q Isn't it clear, General Lanz, that Gandin's Division satisfied all of the criteria of article 1 of the Hague Convention for belligerent status and that they were not in fact franctireurs?
A No, they were regular belligerents.
Q You could not consider General Gandin a franctireur then, could you?.
A I thought we were talking about mutiny.
Q No, I am asking you whether or not the Italians satisfied all the criteria of the Hague Convention for belligerent status and I believe you said that they did.
A Yes.
Q Did they satisfy all the -- if they satisfied all the criteria they could not have been shot as illegal or unlawful fighters or as franctireurs, could they?
A If somebody wages war without a state of war being in existence or without authorization by his Head of State he puts himself outside the laws of war.
Q How about the German soldiers who invaded Yugoslavia before a declaration of war had been made? Would you say that they could have been shot as franctireurs because they fought without a declaration of war having been made? Isn't that analogous to General Gandin's situation?
A For General Gandin the additional factor applies that he raised his arms against us without a state of war being in existence and in contradiction to the order of his immediate superior.
Q There was no declaration of war when the German army invaded Yugoslavia, was there, General Lanz?
A That is well possible, but the troops did not act in contradiction with the order of their own superiors as was the case with Gandin.
Q And if Gandin had actually received an order from Badoglio, would you say that the declaration of war was immaterial?
A. According to international law, a declaration of war always has some importance, because a declaration of war is the announcement of a state, determining whether or not this State considers itself at war with another State or not; unlike an order of a superior officer who only draws the consequences of the act taken by the State.
Q. How did you treat the Italians who deserted to the bandits and fought alongside the bandits? Did you treat them as -
A. The Italians who deserted to the bands were treated in accordance with the Fuehrer order of the 15th of September. The guilty officers of those troop units which together with the bands fought against us were shot after a special court-martial procedure.
Q. If they were shot in accordance with the Fuehrer Order of 15 September, they must have been shot as franctireurs.
A. I am not sure whether they were to be shot as franctireurs. In my opinion they could have been shot as mutineers because they committed mutiny after having surrendered in my area. Those were soldiers of an army which had capitulated to us. These men were German prisoners of war. They then deserted to the enemy and together with the enemy fought against us.
Q. Now, General Lanz, you said these men were shot in accordance with the Fuehrer Order. Now, perhaps you would like to refresh your recollection as to what the Fuehrer Order said. Isn't it true that the Fuehrer Order says that they should be shot as franctireurs?
A. What I mean on the bands is what is said immediately above what you have just quoted. What it says here is -- it does not say anything about franctireurs, in my opinion. That is page 31 of the German text and paragraph 3-a, German one.
Q. Isn't it true that it simply says what should happen to them, but it doesn't say anything about mutiny and sub-paragraph b specifically mentions that they are to be shot as franctireurs?
A. I considered that as applicable to another case; i.e, not the case of the Italians fighting together with the bands; but where they -by themselves - fight against us but without the bands.
Q How long did these courts-martial of the guilty Italian officers last, General Lanz?
A I wasn't present when they took place. An investigation preceded the procedure and I cannot tell you how long that would take, because it would be only a guess. I cannot name any figures for which I cannot take the responsibility.
Q When did you capture the Island of Kephalonia?
A The Italians surrendered on the 22nd, towards noon.
Q And on the 23rd, I believe one of your reports states, so-andso many officers were shot.
A I believe that is a mistake. I think it was on the 24th. But I may be wrong.
Q Do you recall whether any of the officers were acquitted by the courts-martial?
A I only know about those officers who were found guilty. Nothing happened to the others.
Q Do you recall that General Gandin's Chief-of-Staff was executed?
A Yes, I remember that.
Q He was executed even though he had no command functions?
A He was executed because it had been established that he was the main driving force in the whole matter.
Q Now, General Lanz, I believe you said that you mitigated the OKW order because the OKW Order said that all the Italian officers were to shot, whereas you told your subordinates to shoot only those who were guilty.
A That was my opinion, yes.
Q Now, as a matter of fact, didn't the OKW Order say that only the responsible officers were to be shot? Will you look at Book 13, at page 41 in the German and page 55 in the English?
A. Document Book 10?
Q. Book 13.
A. Thank you.
Q. This is an order which the Second Panzer Army sent on to the Fifteenth Army Corps, but I assume the Second Panzer Army received the same order from Army Group F that you did. You will note here a reference that the OKW has ordered that the commanders responsible for the resistance will be shot to death as franctireurs. You didn't have to modify any OKW order, did you, General Lanz?
A. What is said here is correct. But in my particular case Hitler had issued a special order. This is just a general order.
Q. When did this so-called special Hitler order arrive at your headquarters?
A. That was in the period between the 15th and the 20th.
Q. General Lanz, how many Italian losses were there in the course of the fighting on Kephalonia, if you can recall?
A. In my opinion, they were high -- what I saw, partly on the battlefield was in that direction, but I cannot give you an exact figure.
Q. Would you hazard a guess or an estimate.
A. I would guess that they lost about a thousand men, roughly. But it is purely an estimate. Our losses were about 240 to 250.
Q. Were any of the Italian officers shot without court-martial, Genera, Lanz?
A. I don't know that. In any case I ordered that the people were to be put before a summary court-martial.
Q. Well, your reports which you sent to Army Group E, in them you don't mention that General Gandin and his officers were shot after courtmartial. Why didn't you mention that if that had taken place?
A. The Army Group knew about it. I was in constant touch with the Army Group where the matter of Gandin was concerned.
Q. Were all of Gandin's officers shot or just some of them.
A. I stated already that I cannot give an exact figure. I don't know whether it is correct, as is said in the indictment, that all officers of the staff were shot.