an imperative necessity that such rules are established.1) The politicians did not succeed in establishing any standard rules for reprisals and for the taking and the treatment of hostages.
The statesmen of the nations belonging to the community of nations could not agree upon this. At the Brussels Conference in 1874 the attempt was indeed made to come to an agreement upon reprisals. The proposal made by Russia regarding reprisals was however not approved.
For that reason the Hague Conferences of 1899 and 1907 did not establish any rules concerning reprisals either.2) Why have no rules for the carrying through of reprisals, especially for the taking of hostages, in International Law been established up to now?
There can only be one reason for this, namely that the opinions of the individual nations were entirely divergent so that it was not possible to reconcile them to one uniform opinion.
The indicted Generals do not bear the responsibility and the guilt, if there can be a question of guilt, for the reprisals and measures taken against hostages which are on trial here - particularly not General Dehner whose cause I am pleading. It is the responsibility and the guilt of the politicians, of the leading statesmen of the past hundred years, who neglected to establish norms in International Law regarding reprisals and hostages, according to which the soldiers could have acted.
Are the Generals now to be the scapegoats for the failure of the statesmen? Is a General Dehner to be made liable now for the statesmen's neglect of their duty to establish rules for reprisals and treatment
1) Oppenheim's International Law, Page 449: "In face of the arbitrariness with which, according to the present state of International Law, resort can be had to reprisals, it cannot be denied that an agreement upon some precise rules regarding them is an imperative necessity."
2) Oppenheim's International Law, Page 449: "The Hague Regulations did not mention reprisals at all, because the Brussels Conference of 1874, which accepted the unratified Brussels Declaration, had struck out several sections of the Russian draft code regarding reprisals."
Court No. V, Case No. VII.
of hostages? Could such a decision be just? I think such a decision would be contradictory to the most basic principles of justice.
It is a precondition for every punishment that first of all a norm, a law is established, for only on such a basis could a sentence be passed. Since no law of this kind exists or existed, a violation of International Law, especially of the laws of war, cannot be assumed to exist.
Principles for the carrying through of reprisals and the taking and treatment of hostages were only developed by teachers of the law till now. However, the opinions of the teachers of the law are not sources of International Law, as I set forth in detail in my reply to the memorandum of the Prosecution. As regards this I particularly refer to my statements on page 38 of my reply. Although the opinions of the teachers of the law are not sources of International Law, and therefore a sentence cannot be founded on their opinions, I should like to explain in short the prevailing scientific opinions, in order to prove that even on the basis of the scientific opinions of the generally acknowledged teachers of International Law, who enjoy a world-wide renown and cannot be compared with an unknown Professor Hobsa, a punishment would not be justified. Of course it is impossible for me to go into all details in this plea. One thing can be stated, however, by an examination of the literature on International Law: The teachers of International Law differ in the conceptions of reprisals and hostages. Already the conceptions are indefinite, more indefinite than the conceptions are the prerequisites for the carrying through of reprisals and with this for the taking and treatment of hostages. No agreement can be found as to the prerequisites which make these measures permissible. That is a further reason for the fact that a punishment could not be founded on an expert opinion of any kind. For a correct interpretation of my following statements I think it necessary to define first of all the conceptions I should like to take as a basis, in which connection I refer, for a better interpretation, to the sketch on the following page of my plea.
Court No. V, Case No. VII.
In preparing this outline the prevailing theory of the science of international law has been taken as a basis.
In its Brief on the Law the Prosecution has declared that reprisals and hostages have at all times been separate terms. It explained that reprisals and hostages had different historical roots and that legal literature and commentaries differed on each of these two terms. Furthermore, the Prosecution raised the charge that the Defense has mixed and blurred these two terms together in an unadmissible way. In this connection the Prosecution also asserted that even the German troops in the South-east area had not made a distinction between these two terms.
It appears from the outline that this view of the Prosecution is not correct.
It is significant that the Prosecution has not cited any professors of international law at all in support of its view, but has merely referred to the Prosecution speech.
Why has the Prosecution not mentioned legal literature and commentaries in support of its statements? To this there is only one answer: because the Prosecution is not able to quote any legal literature and any commentaries in support of the opinion which it holds.
I shall now comment on this question again by taking as a basis the opinions of the best-known professors of international law.
Court No. V, Case No. VII.
On the next two pages, 58 and 59, I have dealt with the legal concepts pertaining to reprisals and hostages, and I have discussed them based upon the available documents on them. I shall read one sentence from the middle of page 59: Treaty hostages and reprisals are two separate terms. On the other hand, prophylactic and security hostages are subordinate kinds of reprisals. In the following statement, which I am not going to read, this opinion is further substantiated on page 59 and the second half on page 60. I shall now read from page 60, the last but one paragraph.
As a result it can thereby be determined that prophylactic and security hostages are to be regarded as reprisals, the killing of whom is not declared to be inadmissible. In the statements which follow I have rendered proof for the fact that in the case of reprisal measures, which become apparent from the documents, are to be regarded to have been proved, all requisites of a reprisal measure admissible under international law were given. This is being done on pages 60, 61 and 62 also.
I shall continue reading on page 62, towards the middle of the page.
In case full evidential value should be attributed to the documentary material which has been submitted, then the latter would also show that the conditions for the admissibility of reprisals are present.
Proportionality is not a necessary condition for carrying out reprisal measures. This appears in particular from the statements of the professors of international law STRUPP1) and HATSCHEK2). From this it follows that the proportionality of the hostages is irrelevant. Therefore, no viola
1) STRUPP, Woerterbuch des Voelkerrechts und der Diplomatie, p. 350.
2) HATSCHEK, Voelkerrecht als System rechtlich bedeutsamer Staatsakte, 1923, page 450.
Court No. V, Case No. VII.
tions of the laws of war can be deduced from the fact of the non-proportionality of the reprisal measures.
Moreover, a decision on this question is irrelevant. To be sure, in its opinion on the Law the Prosecution has maintained that thousands of hostages were apprehended for security reasons. (page 31). This is in no case true with respect to the area of the LXIX Reserve Corps. To this extent this allegation is untrue and a product of sheer imagination. The evidence submitted shows the following facts with respect to the area of the LXIX Reserve Corps:
The proportion of the number of the persons killed by the bands to the number of hostages presumably killed amounted to 1 : 0.3. In other words: In the area of the LXIX Reserve Corps the proportion of 1 : 1 was not reached even once.
In this calculation it is assumed that all the documents submitted by the Prosecution have full probative value.
Pages 64 and 65 deal with Count III of the Indictment. In these pages I have shown that General Dehner did not participate in either the passing on or the carrying out of the Commissar Order, nor in the passing on or carrying out of the Commando Orders nor, in the carrying out of the shooting of officers of the capitulated Italian Army.
I shall continue reading on Page 66.
Even if one could assume that troops of the LXIX Reserve Corps had committed any acts, as claimed by the Prosecution, any punishment of General Dehner would be precluded by the fact that he acted on orders from his superior authorities.
In the memorandum, submitted by me, I have already expressed my opinion in detail to the question as to what extent the plea to an order, given by higher authorities, precludes the punishment. In this respect I refer to the statements on pages 20 to 41 of my memorandum and here I shall only summarize in brief the legal views expressed therein.
In my legal memorandum I have pointed in particular to the fundamental decision which is generally recognized in the science of international law and which was not given consideration in the memorandum submitted by the Prosecution, namely:
1. The plea of acting on superior orders in general and 2. The plea of acting on superior orders given for the execution of acts of reprisal which, as I have already stated, also includes measures taken against hostages.
On Pages 66 to 73 I have dealt with the plea of superior orders, in a way, and I have reached the result that the opinion held by the Prosecution, namely, that it was a generally recognized principle of law that the plea of superior orders was not admissible, is not correct.
On Page 73 I have continued to deal with the plea of an order for the carrying out of reprisal measures. In this connection I have stated that it is a generally recognized fact that the plea of an order for the carrying out of reprisals is admissible. This is also recognized by those professors of International Law who do not generally recognize the plea of superior orders. They particularly make an exception for the plea of an order for the carrying out of reprisals.
I continue on Page 73, second paragraph:
Should however reference as excuse to the higher authority not be regarded in general as permissible, then, in the case in question, as I have demonstrated in Part II on pages 40 and 41 of my Legal memorandum, it is to be regarded as admissible in the case of General Dehner because it is a question of orders for carrying out reprisals. On this there exists no doubt in the Community bound by international law that a subordinate can refer as excuse to an order for carrying out reprisals and cannot be punished for carrying out an order of the kind. Even those writers and teachers of international law, like for example, Lauterpacht, who generally reject reference as excuse to a superior order, admit it. This incontestable opinion in the science of international law results from the following considerations:
Reprisals are measures which in themselves violate international law especially the martial law. They are however, permissible from an international point of view if they are necessary to compel the enemy to observe the laws of war. Whether this pre-requisite exists only he can judge who is competent to decide about the carrying out of reprisals, in other words, he who issues the order for carrying out the reprisal, As a rule, only he has knowledge of the illegal behavior of the enemy. It is impossible for the subordinate who receives an order to carry out reprisals to decide the question of the admissibility of reprisals. Therefore he cannot judge either whether the order for carrying out reprisals is legal or illegal.
General Dehner is not accused by the Prosecution of having himself issued orders for carrying out of reprisals, rather the Prosecution accuses him merely of having carried out the orders issued by his superiors dated 13 September 1943 and 24 December 1943.
He could not therefore for the reasons mentioned be punished on account of carrying out these orders. Furthermore, the Prosecution submitted as an incriminatory material against General Dehner the report of the Res. Inf. Reg. 45 of 23 October 1943) and the combat report of the Res.
Inf. Reg. 45 referring to encroachments by the Cossacks.
The incidents shown by these documents are not subject of the indictment. For this reason alone they may not constitute the basis of a conviction.
For the rest, no proofs are to be found in these documents for the assumption that General Dehner was a part in the commission of crimes against humanity or war crimes in Croatia.
The documents submitted contain reports about excesses committed by the Cossacks.
In considering the probative value of these documents, it must be taken into consideration that reports about excesses committed by the Cossacks were often fictitious and exaggerated. In this connection I am referring to the entry into the War Diary dated 31 October 1943.
Moreover, the documents submitted by the Prosecution show that General Dehner, whenever he received information about any excesses committed by the Cossacks, punished these excesses with the harshest means at his disposal. It is true that with regard to this point the Prosecution stated that as far as the incidents occurring between the entries 5 and 7 are concerned no mention was made of any measures taken against those excesses. However, this interpretation of the document is wrong, as General Dehner, testifying on the witness stand, explained in all details.
That submission of the Prosecution is due to an incorrectly made copy of the photostatic copy for the document book. The brackets found on the photostatic copy are evidence for the fact that steps have been taken against the excesses in each case. These important brackets were omitted in the copies, creating thereby a false impression.
The measures taken by General Dehner against the Cossacks are also shown by the entry into the war diary dated 31 October 1943. This is, incidentally, also proved by the affidavit of Engelschall and Strachwitz which have been submitted.
Likewise, the Prosecution witness von Bach-Zalewski testified also the division commanders took steps against the excesses committed by the Cossacks and that the guilty members of the Cossack division were court-martialled.
For the rest, the testimony of the witness Bach-Zalewski shows that the excesses of the Cossacks were directed against Germans living in Croatia.
I insert this: The Prosecution in its Closing Statement has made following remark, and I quote:
"In actual fact, according to the records with reference to the First Cossack Division and judging by these reports, General Pannwitz in those days must have led a rather full life. He seems to have spent much of his time with signing death sentences of members of his division who were sentenced because of plundering, robbing, murdering, looting, raping etc. by courts martial when he is faced with the question when he did find time, in actual fact, to deal with tactical matters...."
First of all, we have quite an exaggeration here on the part of the Prosecution because, from the documentary evidence submitted by the Prosecution itself, it becomes apparent that these statements of the Prosecution are incorrect. Furthermore, I put the following questions "Is this to be reproach against excesses of the First Cossack Division, that the most stringent punishments were taken, or is it rather a confirmation of my statement that everything was done to prevent the Cossacks from indulging in excesses?"
The Final Statement of the Prosecution clearly shows the tactics pursued by the Prosecution. First of all, with reference to incorrect copies in the document books, the Prosecution maintained that nothing was done against excesses committed by the First Cossack Division; and after it had been corrected the Prosecution now raises the charge that the Cossacks, designated by the Prosecution as the guilty party, were in actual fact punished, and apparently the Prosecution wants to make General Dehner responsible for this also.
Is this supposed to be a war crime or a crime against humanity? On what a weak foundation is this building of the Prosecution based:
I shall not continue reading on page 78:
Therefore, the following conclusions may be established:
General Dehner cannot be convicted for the following reasons:
1. The evidence submitted has no strength of evidence, so that for this reason alone a conviction would not be justified.
2. The acts reported in the documents have neither been ordered by General Dehner, nor have they been carried, out by troops of the LXIXth Res. Corps, instead, in case they have been committed at all, the German and Croatian police were responsible for them, which were not subordinated to the LXIXth Res. Corps.
3. There are no rules of international law on which a conviction could be based, in particular this applies to the measures concerning hostages and other reprisals.
4. A conviction might be rightly opposed by the plea of superior orders.
Thus, the trial has shown that General Dehner has committed no crimes, in particular, that he has not become guilty of the war crimes and crimes against humanity he has been charged with.
Actions of this kind would also be incompatible with General Dehner's character.
General Dehner's life was devoted to the performance of his duties, his duties towards his nation. Even today, when his fatherland has lost two world wars, General Dehner need not be ashamed of having done his duty.
Apart from that, General Dehner's life was devoted to the performance of his duties towards mankind.
All the evidence taken in this trial shows that General Dehner always endeavoured to alleviate the sufferings of the population in the countries occupied by Germany, that he endeavoured to help the population of the regions where he was in command and that he did help as far as it was in his power.
General Dehner was no Nazi-general. I shall insert a sentence now: General Dehner was never a member of the Party. I continue. His high rank in the Army was not founded on his allegiance to the Nazi system. This may be ruled out for the plain reason that he fought himself against Hitler at the Munich Feldherrnhalle in 1923, because he played his part in crushing the Hitler riot in 1923.
If General Dehner was given later on a high rank in the German Army, he owed this only and exclusively to his military qualifications and achievements.
THE PRESIDENT: Dr. Gawlik, there has been furnished to the Tribunal a summarization of the exhibits. If you wish to comment upon that very briefly you may do so. You have a little more time.
DR. GAWLIK: May I have the exhibit, because I haven't a copy of it.
(THE SECRETARY GENERAL PASSES A COPY OF THE DOCUMENT TO THE DEFENSE COUNSEL)
If the Tribunal please, concerning the evidence submitted by the Prosecution and the evidence submitted by the Defense, I have compared these two. On the left side of this chart is the evidence submitted by the Prosecution, and on the right side is the evidence submitted by the Defense.
The first column contains the exhibit number.
The next column contains the document number of the Prosecution.
The next column contains a short designation of the document.
The next column contains the document book number of the Prosecution.
The next column contains the English page number. By this I mean the page in the English Document Book.
The next column briefly mentions to what extent the document concerned shows evidence from the document itself.
The next column deals with violations of rules governing evidence. In this column I have mentioned, under the first document, 1, 2b, 4 and 5. Those are the paragraphs of the rules governing evidence, taken from my "Memorandum of Law" -- from the first part of this communication. In it I have mentioned five rules governing evidence which were violated by the Prosecution in submitting evidence.
Now, I start with the evidence submitted by the Defense.
In the first column is the exhibit number.
In the second column is the document book number.
Those numbers mentioned in the first column are the exhibit numbers given by me to the documents.
The next column mentions the document numbers.
The next column mentions which one of Defense's document books is involved.
The next column shows the pages of the English text.
In the next column I have laid down the witnesses or affiants. Where witnesses are concerned I have given, in the next column, the page of the record where testimony of the witnesses can be found.
In the next column I have dealt with the whole evaluation of the evidence, and I have briefly summarized it.
The documents on the light-hand side, that is, the Defense documents, refer to the documents on the left-hand side, the Prosecution documents, so that the Tribunal will be in a position to sec by which means of evidence submitted by me the documents presented by the Prosecution have been refuted.
In this chart all documents are contained which were submitted by the Prosecution against General Dehner.
If Your Honors please, I have one request to make: It was only today that I received the record containing the Closing Statement of the Prosecution; so it might be necessary that I talk to my client, General Dehner, tomorrow in order to come to a decision as to whether or not I shall have to reply to this statement. Would it be possible to rule that I would be allowed to talk to General Dehner tomorrow afternoon?
THE PRESIDENT: The Tribunal will discuss the matter during the recess, and we will advise you after we return from recess. The prison authorities have asked that the conferences on Saturday and Sunday be rejected as much as possible; but we'll see whether something can be worked out. We will advise you later.
DR. GAWLIK: Thank you, Your Honor.
DR. MUELLER-TORGOW: Dr. Mueller-Torgow, for General Felmy.
If the Tribunal please.
In the opening statement of the Prosecution it is stated: "this case will only attain international significance..... if we approach the problem in a realistic and practical manner." I can only subscribe to this opinion, which unfortunately was not adhered to by the Prosecution in the course of the trial.
Juristic hair-splitting will not do to get at the bottom of the events which are at issue in this trial. Naturally, I do not mean to say that legal consideration should be excluded, but only that the few available regulations of international law should be interpreted and applied according to their spirit and with due regard to the circumstances of the time. Four decades with a pace of development never known before have passed since the promulgation of the Hague Rules for Land Warfare, four decades which in this respect correspond to more than four centuries. From the era of the mail-coach we have passed on to the area of the atom bomb and the gigantic technical developments have brought along with peace time advantages, recognized by everyone, the totalization of war as the bane of humanity.
On 11 August 1870 the King of Prussia had issued a proclamation which contained, among others, the following statements: "I conduct this war with the French soldiers and not with the citizens of France. They shall, therefore, continue to enjoy complete security of their person and their property......"This is the sphere of the Hague Rules of Land Warfare which in material regards represent practically the only positive source of law for this trial; however, the intervening time has deprived these rules of their basis to a considerable extent, at least as far as it concerns specific regulations. I shall revert to the general clause of the so-called "Military necessities", which clause, in my opinion, still continues to be valid in accordance with the usages of international law, even if one were to assume the suspension of the Hague Rules for Land Warfare in their entirety, insofar as one must not assume even in here that this legal institution will be abolished by reason of the latest developments of war usages. On the other hand, there has been created new law which - viewed from the perspective of the time of the last war and from the then perspective of the defendants in this case - had not yet gained general reco gnition even as law founded upon custom at the time the actions and events at issue took place.
The Control Council Law No. 10, to which I refer in this respect, is characteristic of the fact of the evolution of international law. How far it also contains materially new law, and how far the legal maxim "Nulla poena sine lege", recognized in all civilized states, is applicable against itself, at least in parts of its meaning, shall be discussed later on in connection with the discussion of the execution of orders. Stating it right at the beginning, I shall not, in general, concern myself with legal particulars in order not to repeat the arguments contained in detail in the briefs of the Attorneys-at-law Fritsch and Dr. Gawlick and in the plea of Dr. Laternser.
Passing now on to the case of the defendant Felmy I should like first of all to select a few aspects of the procedure used in this case which, quite apart from material considerations, seems to be capable of bringing about a decision in favor of the defendant.
First of all I should also like to expressly point out the formal incompetency, for General Felmy too, of this Tribunal according to the convention concerning the treatment of prisoners of war (Geneva Convention of 27 June 1929). General Felmy, as a matter of fact, never had been discharged. A discharge in this case means a transfer from the status of prisoner of war to that of a free man and thus an improvement of his personal circumstances. However, this cannot be the case if the so-called "discharge" consists merely of a declaration to this effect on the part of a representative of the state which held him prisoner and the prisoner, in reality, never was permitted to enter upon the road to personal liberty, stated: ".....are to be discharged and rearrested." Thus, there can be no doubt that General Felmy is a prisoner of war now as before. As to the meaning of the articles 45 and following - in particular of article 63 - of the Geneva Convention I may refer to the statements of Dr. Laternser.
The next formal aspect, which I should like to discuss, concerns the presentation of evidence by the Prosecution.
In my opening statement I have already pointed out that a part of the documents presented by the Prosecution have completely lost their original appearance due to the fact that essential points have been omitted and that consequently their contents have become separated from the context which alone would make them understandable. Even the photo copies which have been admitted as evidence are frequently incomplete. The reports, indeed, contain the reprisal measures taken at the time but do not show the underlying causes. As an example, I may be permitted to refer to Doc. NOKW-755(Exh. 449). It concerns the daily report of Army Group E to the Commander in-Chief South-East of 29/11/1943. It is stated there under "LXVIII Corps":
"100 hostages shot as reprisal for attack by bands on road Tripolis-Sparta (Daily report 26/11)."
However, the photo copies of the daily reports of Army Group E have been omitted for the period of 21 to 26/11/1943. This also answers the subsequent question of the Prosecutor at the cross-examination of General Felmy: "If there had been German casualties as result of the various attacks on railroads and other attacks, would such casualties not be included in your reports?" These casualties in fact were reported and this attack in particular was covered by the daily report of 26/11, 1943, of which not even a photostatic copy had been submitted by the prosecution with the result that the defense did not know about it. It is hard to believe that the Prosecutor could have been ignorant of this fact when he put the abovequoted question to General Felmy.
The same applies also to the daily report of 6/12/1943 (NOKW-044, Exh. 418) the subject matter of which was contained in the daily report of 2/12 and which was also not included in the photo copy of the Prosecution document.
COURT NO. V, CASE NO. VII.
"These are only two examples among the many.
"The supplementary material from Washington also shows considerable gaps. Many of the documents needed to complement the photo copies were not included in the shipment. Thus, a complete and therefore correct picture of the events still cannot be obtained from the available documentary material. If the prosecution submits military documentary evidence for a certain period of time then the prosecution must submit them in their entirety and not only by way of excerpts as it was done. In reference to the decision of the Tribunal of 14 August 1947 it may be assumed that the original documents withheld from the defense 'are unfavorable to the prosecution'.
"Even if all the submitted photo copies had been complete, they would hot have any probative value whatever. To substantiate my statement I should like to select the direct examination of the witness Joachim Lange of 9 December 1947 as an example. I was stopped in the examination of the witness five times, on the grounds that he knew of the event concerned only from hearsay. Thus I asked in the first of these cases 'What did the staff officers tell you concerning the operation Kalawrita?' This question was barred on the objection of the prosecutor, who said: 'If the defense counsel wants to prove what the officers thought concerning the operation Kalawrita then these officers should have been brought here and not the defendant.' It was likewise in the other cases.
"I now pass on from the statements of the witness to the depositions contained in the documents submitted by the prosecution. In order to construe an example, let us assume that the daily report speaks of the shooting of a number of reprisal prisoners. The one reporting this occurrence is the Ic of some divisions and he has not witnessed the shooting of the reprisal prisoners himself just as the witness Lange in the above-mentioned case.
If he should appear in this Tribunal as a witness his statements would be without any probative value. The characteristic feature of military reports compared to the testimony of the witness Lange consists also in the fact that the Ic did not even get first-hand reports for his written declaration, but that the reports of the event in question had passed through the hands of many intermediate agencies and had thus taken a much longer course as had been the case of the event described in the testimony of the witness Lange. Formally, it must be added that the Ic did not give his report under oath and, materially, that - as had been a matter of common experience in the Wehrmacht - the number of those killed in action and, in particular, of executed reprisal prisoners very often was exaggerated intentionally. I may refer in this connection to the Felmy Document 104 where it is stated in the war diary of Army Group E in the entry of 17 May 1944:
'There has come to our attention an inclination to exaggerate in making reports. As a rule, incredibly high figures are given of the enemy's strength and his losses.'
"The witness, Freiherr von Varnbuehler as well as the former General Pemsel speak of so-called 'cooked-up' reports. Kleykamp states in his affidavit: 'All military agencies were inclined to exaggerations in their reports ....This phenomon assumed increased proportions when collected by and in passing through superior military agencies with the result that almost always misleading pictures were obtained. This is especially true for the figures 'which were reported in regard to reprisal measures, the shootings of hostages, etc.
All these figures, therefore, are only of limited value.'
"Temptation to make exaggerations of this kind is especially strong when unfavorable circumstances suggest to the troops that by reporting exaggerated figures they would have 'complied' with superior orders or at least would have come very near fulfilling them. This can readily be understood in the case of the executed reprisal prisoners in view of the generally well-known severe reprisal quota order. Apart from this, tactical operations very often became mixed up in these reports with reprisal measures taken in the wake of them with the result that the allegedly executed reprisal prisoners very often turned out to be soldiers killed in action.
"Besides, General Felmy has stated during his examination that the events reported by the LXVIII Army Corps were not always the outcome of orders of its subordinated commands and that they were merely reported to the superior commands in order to inform them - in as short a time as possible - of events in the corps area, in which more than one instance was competent for the same matter. Events which were reported individually to the superior instances very often were now forwarded collectively under the designation 'Report of the LXVIII Army Corps'.
"Events, mentioned in the reports and in the war diaries, the entries in which generally represented a summary of a number of reports, consequently could only have probative value, if the persons who had witnessed them had reported them on the witness stand under oath, or by way of an affidavit confirming to formal requirements. This, however, is not the case.
"The prosecution documents submitted against General Felmy cannot have probative value if only for the abovestated formal reasons. In conclusion I should like to introduce another point for discussion.
"In view of the fact that it is unequivocally held by the prosecution in its indictment and in its opening statement that General Felmy has also participated in a plan to exterminate the Greek population and in view of the fact that in filing the indictment considerable importance is attached by the prosecution to the motives of his actions - I shall revert to this in another connection - it is of particular importance to the defense to furnish proof that General Felmy not only did not terrorize and exterminate the Greek population, but had endeavored - by all means at his disposal - to establish good relations with the civilian population and, beyond that, to help where ever he could according to the commands of humanity. In order to prove this I had - by making use of the prescribed procedure - requested a number of Greek notables to give written reply to some questions put to them. In the course of time I only received two answers from the persons concerned, one of which was not admitted by the Tribunal because it did not comply to formal requirements. In connection with these written questions I had at that time applied for permission to travel to Greece, in order to look up personally the persons concerned and on the other hand to ascertain further Greek and German witnesses and/or persons willing to give affidavits, whom I could not contact from Nuremberg, when I would have found, however, in their own locality, on the basis of certain facts in my possession.
"These people were to make statements about the "situation concerning the partisans at the time of the German occupation, and about the attitude of General Felmy as to reprisal measures, and about his collaboration with such sector of the Greek population that was well disposed toward Germany.