Besides that (camp)there existed in Serbia during the term of office of v. GEITNER various smaller camps for retaliation prisoners. Also for this camps v. GEITNER had no authority or responsibility whatsoever. The transfers to those camps, was always ordered by the district commands and the police offices. V. GEITNER as the Chief of the Command Staff had nothing to do with the transfer of retaliation prisoners.
The securing of workers (i.e. the putting at disposal of workers for Serbian plants, as well as for Germany) belonged in Serbia to the G.B.W. (Plenipotentiary for Economy) and as of September 1943 to the Administration Staff of the Military Commander South-East. The holder of these offices (by name of NEUHAUSEN) was at any given time subordinated directly to the Commander; v. GEITNER had no right whatsoever of giving directives to the latter.
To No 15 d:
The evacuation and transportation for work in Germany of the entire male population of especially important battle areas, as provided for by the order of the Supreme Commander South-East of 10 August 43(NOKW No 155, exhibit 306, document book XII, page 94) had not been carried out in Serbia.
It should be mentioned that in Serbia existed a, great lack of manpower. A deportation of manpower of entire battle areas would have been therefore senseless. The work allocation in Serbia belonged to the competence of the G.B.W. (Plenipotenciary for Economy) and as of September 1942 to that of the Administration Staff/Dept. Economy; both were not subordinated to v. GEITNER. The transport of captured bandits to Germany belonged to the competence of the Higher SS and Police Leader Serbia, who was not subordinated to the Chief of the Command Staff Serbia(v. GEITNER) either.
After receipt of the order of the OKW of 8 July 43, also captured bandits had later on been treated as prisoners of war and been deported to Germany.
III.
The defendant v. GEITNER intents on his part to base his arguments on the following:
1.) on his own interrogation under oath:
2.) on the testimony of various co-defendants, insofar as they will be called as witnesses;
3.) on a series of affidavits, partly from German, partly from foreign witnesses; some of these witnesses should be called to appear in person to testify; name and number of those witnesses of the defense which should be called personally, has not been established yet.
I have read the opening statement for my client.
THE PRESIDENT: As I understand, Dr. Sauter, the opening statement for defendant Lanz has not been delivered to the Tribunal as yet. Is that correct? The deputy Secretary General advises me that it has not been delivered. I understand that there is an effort being made to got it up here shortly. I am informed that the Marshal has gone for these papers now. In the meantime, while we are waiting for them to be brought here I am advised that the opening statement of Dr. Menzel for the defendant Kuntze is ready and can be presented at this time. Are the English translations here and do you have them, Doctor?
MR. DENNEY: If your Honor please, I have sent down from some English translations for the Court and tho interpreters and the court reporters and the secretary was just up and said they were on their way. I don't know by which means of transportation but they are somewhere between the assembling room and here at the moment but, not knowing where the assembling room is nor who is going to bring them, I don't think there is anything more I can do about it other than to wait.
THE PRESIDENT: The Tribunal will be in recess at this time, taking its noon recess.
(A recess was taken.)
THE MARSHAL: Persons in the courtroom will please find their seats.
Tribunal V is again in session.
THE PRESIDENT: Before the next opening statement is made I think that it might be well to read two communications that I have received from the Director of the Language Division. One was received this morning, dated September 15, 1947 which is as follows:
"Subject: Status of Opening Statements in Hostage Case.
"From: Thomas K. Hodges, Director Language Division.
"To: Charles F. Wennerstrum, Presiding Judge, Tribunal V.
"1) Already delivered to the Defense Information is the joint opening statement for the defendants List, von Weichs and von Geitner.
"2) The opening statements for the defendants Felmy, Kuntze, Lanz and von Leyser are in the process of translation and will be delivered to the Defense Information Center before the end of the work day, September 15, 1947.
"3) The opening statement for the defendant Dehner, Kuntze, Rendulic and Speidel have been turned over to the interpretor staff of Military Tribunal V and should be ready for presentation in Court by the end of work day, September 15, 1947.
"(Signed) Thomas K. Hodges, Director Language Division."
At the time of the recess I found on my desk a further communication from Mr. Hodges which is as follows, dated September 15 1947:
"From: Thomas K. Hodges, Director Language Division and Chief Translation Branch.
"To: Charles F. Wennerstrum, Presiding Judge, Tribunal V.
"Listed below are the names of the defendants in the hostages case with the date of the arrival in the Translation Branch of the opening statements on their behalf:
"Felmy -- Thursday, September 11, 1947; Kuntze -- Thursday, September 11, 197; Lanz -- Tuesday, September 9, 1947; von Leyser -- Tuesday, September 9, 1947.
"1) At 12 o'clock September 5, 1947 the opening statements for Kuntze and Lanz had been delivered to the Defense Information Center.
The statements for Felmy and von Leyser will be delivered to the Defense Information Center in the course of the afternoon.
"2) --the opening statements for the defendants Foertsch, Dehner, Rendulic, and Speidel were received, I am told, at 1730 hours Friday, September 5. I should like to point out, however, that these statements did not reach my desk until 9 o'clock Monday, September 15. These statements are being translated at the moment by the interpretor staff of Military Tribunal V and will be ready for presentation in court by the end of the work day, September 15, 1947.
"Signed: Thomas K. Hodges, Director Language Division and Chief Translation Branch."
There was handed me by the Defense Center a statement, which indicated the information that had been given them, which shows that the opening statement for the defendant Dehner was received in the Defense Center on September 12th and I am advised by Dr. Laternser that the counsel for the defendant Dehner, Dr. Gawlik, states that he filed his opening statement on September 11th.
As to the defendant Geitner, the records in the Defense Center show it was received on September 10th and Dr. Sauter states he filed in on September 5th.
As to the defendant Felmy, that would show it was received in Defense Center on September 11th by counsel Dr. Mueller Tougow on September 11th.
As to the defendant Foertsch, it was filed in Defense Center on September 13th and the counsel, Dr. Rauschenbach, states that he filed it on September 13th.
As to the defendant Kuntze, it was filed in Defense Center on September 10th and Dr. Menzel states it was filed on September 10th.
As to the defendants List and Weichs there are no complaints.
As to the defendant Lanz, it was filed on September 8th and Dr. Sauter states it was filed on September 8th.
As to the defendant vonLeyser, it was filed in the Defense Center on September 9th and Dr. Tipp states it was filed on September 8th.
As to the defendant Rendulic, it shows that it was filed on September 12th and Dr. Fritsch states it was filed on September 10th.
As to the defendant Speidel, it shows that it was filed as on September 13th in the Defense Center and Dr. Weisgerber states that he filed it on September 12th.
As to all counsel, other than Dr. Fritsch, there does not seem to be any excuse for the delay that has been occasioned in the presentation of these opening statements. This Court originally adjourned to convene on September 12th and this Tribunal does not see where there is any excuse for the filing of any opening statements on September 13th, 12th, 10th or 11th or any of those days.
If there is any delay here occasioned by it, the Court will endeavor it by requiring the necessary translation by the interpreters themselves.
This statement is made for the record to show the occasion of the reason of any delays.
DR. SAUTER:(Counsel for the defendants Lanz and von Geitner.) Your Honor, the statements which have made to you by the Translation division are not correct with respect to my clients, but are incorrect. For sometime I have had the habit to always ask for a receipt, which shows the date when I have submitted certain material. I apply this precaution because I have had many sad experiences in the early days. I have here two receipts by the Defense Information Center, that is the roper authority where we defense counsel have to submit our documents. The confirmation for the opening statement for the defendant von Geitner says here expressly, "Delivered on 5 September, 1947." that is 5 September 1947, that was Friday, a week ago and it is signed "Mueller." She is the responsible employee for the Information Center for the Defense. Furthermore, I have here a receipt for the opening statement for General Lanz, which is a receipt showing that this statement was submitted in four copies, as is prescribed, on 8 September 1947, that is a week ago today.
I had assumed , and I assume even today, that one week should be sufficient to translate an opening statement to the extent of about ten pages. This second receipt is signed, regarding the statement for General Lanz, is signed by an employee, "Falkemeyer" of the Defense Information Center.
Your Honor, I attach importance to this last statement, because you can see from this that I should not be reproached because of a delay of the proceedings. These receipts can be submitted by me at any time in order to prove that the two opening statements were already submitted on the 5th and 8th of September, respectively.
May I add something else, Your Honor? During the course of the previous weeks, I have asked repeatedly at the Defense Information Center about the state of the translations. It is rather difficult to get information on this because the staff of the defense is not allowed to visit the rooms of the translation branch. We defense counsels can therefore only put our complaints or inquiries to the Defense Information Center of the General Secretary and I have done that. That is for my part, I have done everything I could and everything that has been said to you to the contrary can be repudiated by these receipts, which I have here.
Thank you.
THE PRESIDENT: Dr. Sauter, you have ---
(Dr. Sauter hands the receipts to the Tribunal.)
DR. SAUTER: This is for Lanz for the 8th of September and for von Geitner for the 5th.
THE PRESIDENT: Dr. Sauter, will you take one of the earphones so I can make a statement?
I think I avoided making any statement or criticism, which might apply to you, Doctor, I did endeavor to restrict any critical statements to any documents, which were filed prior to September 10th. I again repeat, however, that I can see no excuse for the documents being filed September 10th and afterwards. We were to have convened on September 12th and I cannot see how we could have been prepared to have opening statements when some were filed on September 10th, 11th, 12th, and 13th. The criticism was not directed to you, Dr. Sauter.
DR. SAUTER: Thank you, Your Honor.
THE PRESIDENT: I understand we are now prepared to have the opening statement for the defendant Kuntzby Dr. Menzel.
DR. MENZEL: (Counsel Menzel for the defendant General Kuntze.) Before I read my opening statement, I would like to say one thing concerning the reproach which we have heard concerning the delay of sub mitting our opening statements for translations.
I had submitted my opening statement on the morning of Wednesday, 10 September and I then pointed out that I was the second person to read the statement and that it would have to be finished on Monday morning. Thursday the 11th we made inquiries as to whether it would be ready in time on Monday morning and everyone was indignant that we should ask, as that would be a matter of course, that it would be finished on Monday if it was submitted on the previous Wednesday. Well, that finished the matter as far as we were concerned. This morning we again made inquiries and we were told it would not be ready until one o'clock as it had to be stapled, so that it would be at our disposal at 2:00 o'clock. At 1:30 we again made inquiries and we were told an error had occured and two pages had been omitted and that was the reason that caused the delay.
I am of the opinion that we of the defense counsel, or at least my own person, is not at fault and we cannot be liable for other departments and for delays which occur there.
May I now turn to my opening statement?
Your Honors:
The accusations brought against General Walter KUNTZE in the indictment concern the time between the end of October 1941 and the beginning of August 1942, when General KUNTZE was acting commander-in-chief of the 12th Army and acting commander-in-chief in the occupied district South East.
This command of General KUNTZE had been limited by the Army Personal Office to the period of illness of Field Marshal LIST who was Commander-in-Chief of the 12th Army and Commander-in-Chief South East. It was originally intended for 4 to 6 weeks only but as a result of the longer duration of Fieldmarshal LIST'S illness and his later re-assignment its extension was implied.
Respecting the duration, from a point of view of time, of his activity as acting Commander-inChief of the 12th Army and acting Commander-inChief in the occupied district South-East, according to the statement of the prosecution itself, it is established that General KUNTZE took over command on 27 October 1941 and held it until 8 August 1942.
From these established facts three deductions of a fundamental nature may be made to which I should like to call special attention at the beginning of my opening statement:
1. As a result of taking over the command on 27 October 1941, the defendant KUNTZE is freed from practically all responsibility for events in October 1941 and the beginning of November 1941, since General KUNTZE during the period after he assumed command had first of all to get a general idea of his territory and the position there before he could occupy himself with details at all.
2. As a result of being appointed merely as deputy for a period of time limited in advance, his direction was naturally within certain limits. This consisted above all in the initial stages of his command in the obligation to already existing situations created by the command before he took over.
3. The activity of General KUNTZE consisted in the first place in the carrying out of operative measures. General KUNTZE looked upon the success of these measures as his main task as is the case with every director of strategy conscious of his responsibility. Within the frame-work of this activity the task arising out of the occupation of the South East which were passed on to the Territorial commanders to be dealt with independently were only of secondary importance. From this point of view the characteristics of the offence which form the basis of the indictment must be assessed too.
In my closing speech I will go in more detail into the legal problems which have to be dealt with in these proceedings. Moreover, they have already been thoroughly discussed by my colleague Dr. LATERNSER in his opening statement. Therefore I can limit myself to referring briefly to these questions in my opening statement:
The prosecution bases its accusations exclusively on the Control Council Law No. 10 of 20 December 1945 to prove the punishableness of these incidents. This law, however, was only proclaimed some years after the events with which the prosecution charges the defendant KUNTZE. Therefore, it endeavours with retroactive power to create a punishable characteristic of the offence. In accordance with the legal principles recognized in the criminal law of all civilized countries "nullum crimen sine lege" and "nulla poena sine lege" the subsequent standardisation of a punishable characteristic of an offence cannot, however, constitute punishableness if at the time the offence was committed no norm of punishment existed. If international law had wanted to punish these actions before 1939 the possibility of doing so would have existed for even then there were innumerable international agreements into which such norms of punishment might have been inserted. It will be stated further that other rules of international law too which are binding for a German citizen were not violated by the defendant KUNTZE.
In this connection, I shall demonstrate that international law, insofar as it has not been incorporated in German Reich Law, simply cannot incur a responsibility on the part of individuals. For international agreements entail obligations only on the part of the contracting countries themselves.
This applies also to the Geneva Convention and the Hague Convention, quite apart from the fact, that in these agreements any standardization of punishableness is lacking in the event of contravention of the rules by one of the partners to the treaty.
Therefore, the defendant KUNTZE could only be held responsible for violation of existing German laws. Since he is accused of acts which he is supposed to have committed as a soldier, the question of responsibility arises only if such exists for these acts according to the Military Penal Code. It will be demonstrated that the measures taken by the defendant KUNTZE were carried out on orders of the highest command of the Wehrmacht and within the frame-work on instructions issued by the latter which were binding for the defendant KUNTZE. In carrying out these orders the defendant had to assume that they were in accordance with the rules applied in Martial law. Accordingly the defendant KUNTZE is exonerated of responsibility in accordance with Par. 47 of the Military Penal Code as I shall demonstrate more fully in my closing speech.
In addition, in these proceedings, the right of admissibility of reprisals, in particular will remain to be thoroughly examined. I shall demonstrate in my closing speech that there is no international law concerning the taking of hostages. In international literature the right is disputed, is, however, extensively recognized as permissible and that also in the literature of Anglo-Saxon countries.
Therefore there can be no question of prohibition of the taking of hostages. Add to this that, as the nations' conduct of war proves, this right has been exercised until most recent times. The same holds for the right of execution of persons as reprisal hostages in connection with unbearable offences of the enemy against the conduct of the war for which the latter are made responsible.
From the point of view of proportionality I shall demonstrate and prove that in the literature pertaining to international law no limit is fixed for the proportion of atonement. The standard is rather dutiful assessment.
Further discussions in my closing speech will deal with the question of obedience to orders issued. I will go into the character of the military orders and show that these were binding and that non-adherance to them would have been tantamount to revolt against the supreme power. In this connection too, the question of responsibility for measures on tho grounds of such order will have to be gone into. I shall demonstrate that orders of the highest command of the Wehrmacht constituted in principle no responsibility on the part of the organs carrying out the orders that rather the responsibility was borne exclusively by the commander in Chief of the Wehrmacht.
Such orders were not subject to checking so that the military rank of the person carrying out these orders was of no account.
In themselves simply they had the appearance of legality. In a material respect I shall demonstrate the following:
According to Count I of the Indictment General KUNTZE is accused of killing civilians of the South East Area, in so far as this was occupied by Germany, by collective punishing. On the contrary I shall prove that the defendant is not guilty of the charge brought by the prosecution. The execution of reprisals, especially killing reprisal hostages, cannot be traced back to the initiative of the defendant KUNTZE. He neither introduced them in the South East area, nor caused them to be carried out initially. When the defendant KUNTZE took over his duties as deputy military commander South East, he found many orders pertaining to collective punishment already in force. The defendant KUNTZE could not make any changes then, because these orders had already been issued to the subordinate military posts and besides, he was not familiar with conditions in the Balkans at the time he took over his duties. Furthermore, he was only sent to the South East as deputy military commander South East for the duration of his predecessors illness. Finally, the defendant KUNTZE had to accept, as legally binding, these orders that had been issued, and of which he only learned by and by because his position kept him very busy right after he took over his command, especially since he had to make official trips through the territory he controlled, because they had been issued by order of and in accordance with the directions of the superior office.
Therefore, these reprisal measures, which were carried out according to these orders, cannot be considered as a charge against tho defendant Kuntze.
It can also not be said, as the prosecution says, that tho defendant KUNTZE must have realized the "criminal nature" of those orders. As shall be proved, the execution of these orders during his command was no violation of existing national or international laws, and especially not a crime against international law or humanity, even though they necessitated severe measures, such as a war naturally brings to humanity.
In particular, the execution of these reprisal measures did in no way represent, either in purpose or goal, a plan to terrorize the civilian population, as the prosecution maintains. They were, rather, as shall be proved the result of acts in violation of international law on the part of a portion of the population of the occupied countries, who endangered the peace and security of the occupied South East area by attacks on the German occupation troops, by sabotage and by fighting amongst themselves. Therefore General KUNTZE must necessarily get the impression, from the continuously arriving reports from subordinate offices and commands, that quiet and security in the South East area could only be guaranteed by means of strong measures, as had been ordered by the High Command of the Army and through corresponding orders issued by the military commander South East before he (KUNTZE) took command. The restoration of order was also a duty of the occupation troops toward the civilian population. Even though General KUNTZE had to be convinced, after seeing local conditions and learning about the existing regulations, that stern measures were absolutely necessary, he none the less left no stone unturned, while he was in command to soften the prescribed measures for the benefit of the population. Thus he influenced General BADER in this respect, as will be proved, and arranged, among other things, to have the reprisal ratio reduced through General BADER.
It will further be proved that in the spring of 1942 General KUNTZE even personally requested the highest Army leaders, i.e. JODL and KEITEL, to have the measures softened. He did this even though he well knew that at that time such a request would have personal disadvantages. This is even more so, because he was already considered by the Army High Command as too mild and too soft. He cannot be blamed if his requests were not successful, but rather his attempt must be recognized. At any rate, he could not simply ignore the orders issued by the highest Army leaders, especially since these were issued by HITLER'S express order.
From then on his efforts were directed toward softening the execution of these orders in his area of command. It shall be proved that the orders concerning reprisals were not carried out to the extent ordered. On the contrary, many of his subordinate offices and commands deviated, with his consent, in many individual cases, from the reprisal ratios ordered by the Army High Command. I shall show the Court, by a comparison of the losses of the German troops, and their Allies, with the number of persons shot in reprisal during the time General KUNTZE was responsible, that only a fraction of the number ordered by the Army High Command was involved. Also, inaccurate reports of high losses of the Partisans were made to the military commander South East, and by him to the Army High Command. It will also be proved that wherever possible, cruelty was avoided in the selection of the persons to be used in the carrying out of the reprisals. This was especially done by almost exclusively using persons who, through their activities, already deserved the death sentence according to the laws of war. Apart from this it is pointed out that in the final analysis it is not possible to force an elementary incident such as a war, into a legal frame work. Every occupation force must be prepared to use the means that are deemed necessary to assure order and security in the countries it has occupied. The history of war of the past as well as of modern times proves that the application of the measures necessary to insure the security of the occupying force and of the population depend primarily on existing conditions and that the usual standards must necessarily be relegated to the accomplishment of these goals.
In so far as the defendant KUNTZE is accused, under count 2 of the indictment, of burning down homes, I shall prove that there can be no question of a "far-reaching devastation of the occupied country," as maintained by the prosecution. The prosecution has only submitted three documents in support of this statement, in which it is shown that homes were burned to the ground while the defendant KUNTZE was in command. I shall show later that two of these documents do not concern the defendant KUNTZE.
However, the burning of the house mentioned in the remaining document was, as I shall show, entirely justified by the existing regulations.
Up to this point the prosecution has offered no proof to support its charge that the economy and industry was ruined in order to lower the economic and industrial potential and to destroy the population. To refute these statements of the prosecution I will show that the German army commands did everything they could to bring the economy, which had above all been upset by the Partisans, on its feet again. Railroads, factories and mines were repaired. The German authorities also did all they could under the circumstances to intensify the agricultural program, Over and above that, relief measures for the population of the South East area were instituted, as I shall show in detail in final argument.
In so far as the prosecution looks on the Partisans as members of a regular army, and considers the measures carried out against them as crimes against members of Allied forces, as set forth in count 3 of the indictment, it is pointed out that the prosecution has not so far been able to prove the correctness of their contention.
I shall show that it was only in later years that Allied governments considered the question of whether or not they should recognize the Partisans in the Balkans as regular armed forces. The prosecution will not, on the basis of the evidence they have presented, be able to maintain the charge in the indictment that these bands fulfilled the requirements necessary for recognition as a regular army during the time up to August 1942, which is the period that the defendant KUNTZE held the positions of Deputy Commander in Chief of the 12th Army and Deputy Army Commander South East.
I shall prove that these bands or Partisans had nothing in common with a regular army. As shall be proved, they generally wore civilian clothes without any insignia that could recognized from a distance, or also captured uniform pieces, often even German uniforms which they had taken off of dead German soldiers.
But what is most important, they did not fight according to any rules or customs of war. They did not carry their weapons openly and only fought from ambush. They evaded every open battle. They did not treat captured German soldiers according to the rules of international law or humanity. Captured German soldiers, including the wounded, were murdered. But their deceitful warfare affected not only the German occupation force but also their own people whom they harassed and often forced to tolerate and support their deceitful warfare. As a result of these violations of international law they had to be considered and treated as armed insurgents.
The activities and methods of such bands are known from World War I. This irregular activity of bands is also characteristic of the Balkans. As shall be shown, every foreign occupation force in the Balkans must count on this ambush warfare and meet it with appropriate measures. Even until this day the activity of bands is a source of trouble which does not allow peace to settle in the Balkans.
Therefore, this partisan movement in the Balkan, traceable through the whole course of history, could surely not have been a consequence of the German invasion, as the Prosecution contends. On the contrary, I am going to prove that it was just that Guerilla-bands activity which first engendered the counter-measures ordered by the German Army Chiefs. Consequently, the German Army was in a state of legitimate defense in combatting these bands by way of the measures ordered.
Moreover, I shall prove that the defendant KUNTZE was not the first to order those measures against the Guerilla-bands movement taken by the WB (Military Commander) South-East. Also in this respect there had already at the time, when General KUNTZE took over, various binding orders by the German Army Chiefs been in existence, which resulted in the orders issued by the offices charged with maintaining order and security. Though considering these measures as a legitimate counter-defense by the German Army Chiefs in view of all the reports he had received about the extent and nature of the Guerilla-movement, General KUNTZE nevertheless endeavoured to mitigate those measures in accordance with the situation and with his humane attitude, as I shall prove.