KESSELRING: I considered such an order, received by me as commander-in-chief in the Mediterranean, where I held a double post, as not binding for me, but as the outline of an order which left me a free hand in its application. On this question I held the view that it was for me, as commander-in-chief, to decide whether a Commando action was contrary to international law or whether it was tactically justified. The view adopted more and more by the army group, which view was directed by me, was that personnel in uniform who had been sent out on a definite tactical task were to be treated and considered as soldiers in accordance with the provisions of the Hague Convention for land warfare.
DR. LATERNSER: The Commando Order was consequently not applied within your command?
KESSELRING: In one case, yes, it was certainly applied.
DR. LATERNSER: Which case do you mean?
KESSELRING: I mean the case of General Dostler.
DR. LATERNSER: The case of General Dostler has already been mentioned in this Trial. Did you know about this case when it was pending?
KESSELRING: As a witness under oath I have stated that I cannot remember this case. I think there are two reasons why I was not informed of it. Firstly, after a conversation with my chief, who spoke to another commander about it, it appeared that none of us knew anything. Secondly, because of the gigantic operations on the Southern Front, I was more often absent than not from my headquarters.
DR. LATERNSER: Witness, if you had been called upon to make a decision on the Dostler case, how would you have decided?
KESSELRING: I am not well enough acquainted with the case. I know it only from hearsay.
MR. JUSTICE JACKSON: I do not think we can try Dostler’s case, or that this witness should give his conclusions, inasmuch as Dostler’s case has been tried by a competent court and that issue is disposed of. I have no objection to any facts that inform this Tribunal, but his conclusion as to the guilt of his fellow officer is hardly helpful.