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.
Although the presiding judge had, on general principles, immediately given his verbal approval for this trip, the approval of the Military Government in Berlin was refused by telephone, since no German is, at the present time, permitted to travel to Greece. On the same day, however, the Press reported that German exporters were again permitted to take trips to all foreign countries with the exception of Japan and Spain, thus including Greece.
"If one must check the conditions in a foreign country during a past period, one must also be in the position to gather the necessary information in the locality concerned. Only in this way can the High Tribunal obtain a correct picture of the conditions and circumstances in this country. If this trial must take place in Germany, the defense must at least have the opportunity to obtain all the facts which concern the matter under discussion. That is a quite natural legal prerogative which is applicable in all cultural States. It must be applicable to an even greater extent since the prosecution has had the right and possibility to present a number of Greek witnesses to the High Tribunal. I am convinced that if the prosecution would have desired and had seen a promise of success in doing so, they would, without technical difficulties, have been able to send representatives to Greece, to obtain facts there so that, if necessary, any number of witnesses would have been brought from Greece to Germany by them in order to be questioned in this trial.
"In accordance with Article IV e of Decree No. 7 of the Military Government in Germany, every defendant has the right to submit to the court through his defense counsel evidence in his defense. This common right has been denied me by refusing me the permission to go to Greece. The trial shows, therefore, a considerable formal default, which does not allow an objective decision, if the evidence submitted by the prosecution is considered to be important. Your Honors, if I now approach the material part of my statements and the discussion of the counts of the indictment, I will attempt, first of all, to draw a general picture of the situation concerning the partisans in the Balkans and particularly in Southern Greece. The arguments of the prosecution are obviously incoherent, that is, the effects described are independent of their fundamental cause. If one speaks about reprisal measures in the Balkans, one should not forget the incidents which caused these measures; because no one is going to maintain that these reprisal measures were ordered without any foundation. Only the prosecution authorities could speak of an extermination plan by the defendant without consideration of any partisan activities. The situation concerning the partisans can only be understood if one takes the Balkan history and its particularities into consideration.
"It does not appear necessary to prove in detail that the Balkans, as far as the appearance of partisans is concerned, were always outside of the European community. Since there is a Greek history, there are partisans in Greece, who, of course, not always have committed excesses with the same strength and intensity. The century old literature of the Balkan peoples had again dealt with activities of partisans in various forms. I only "have to point out the fact, which is well known throughout the world and which is constantly being published in press and radio here and abroad, namely that the activities of the partisans did not stop with the departure of the Germans from Greece in 1944, but rather that they increased since that time.
The most recent incidents show best of all that this situation seems to be a physical necessity, caused by geographical, geological and anthropological reasons. In order to justify this statement, I would like to point out that in the entire German history similar incidents have never occurred.
"When General Felmy as Commander of Southern Greece entered this territory for the first time in June 1941, there was no antipathy on the part of the Greek people against the German soldiers, who had fought recently and courageously. On the contrary, a well founded and hearty understanding quickly developed between the population and the occupation forces. The population only showed opposition towards the members of the Italian occupation army which was caused by an antipathy developed during the course of history, the unsuccessful conduct of the war by the Italians, and their unfriendly attitude towards the Greek people. At late as August 1943 partisans sent German prisoners back with a letter of apology, stating that they had been mistaken for Italians. The decisive change in the attitude of the partisans did not develop until the Fall of 1943, that is, 1½ years after the Greek army capitulated. Up to this time, surprise attacks on Germans in Southern Greece had occurred to a very small extent only. The change of the situation was obviously due to several reasons.
"First, it was the capitulation of the Italian "army which would have resulted in idleness for the partisans if they would not have selected new objects for their attacks, in view of the fact that they now were sold considerable quantities of weapons and ammunition by the Italians.
No particular mention has to be made of the fact that the members of the EAM-ELAS - and only these outfits appeared in Southern Greece during the entire period of occupation - consisted to a large extent of elements which were economically unreliable, criminals, or open followers of communism.
"That even nationalistic Greeks joined the ranks of the EAM in addition to those who were forced to join up can be explained by the fact that at the beginning, the EAM threw a nationalistic robe around its shoulders while its actual attitude could not be recognized. Only in the course of time did the Greek population realize more and more that the EAM had nothing in common with national aims but worked undoubtedly for Bolshevism in Greece. The incidents after the evacuation of Greece by the Germans finally opened the eyes of all nationalistic Greeks."
Winston Churchill, in his article "If I were an American", which appeared in the magazine "Life" of 12 May 1944, writes:
"In forty days of street fighting we fought for the life and the soul of Athens, sector for sector, district for district, the Communistic invaders were driven back, house for house, and finally routed with severe losses. During their retreat, they murdered at least 20,000 men, women and children whom they did not like or who crossed their path."
If I may add that the present Greek Government has very recently outlawed not only the Communist Party but also the EAM, I believe the circle, is closed.
Further causes for the actual beginning of partisans activities against the Germans in the fall of 1943 can be found in the development of the foreign political situation.
From Communistic circles of other countries - may I point out the treaty of the Communist parties of Greece and Bulgaria of 12 July 1943 showing the cooperation with the Greek Communists - the partisans were supplied with men and material. On the other hand, the supply by air of the bandits with weapons, ammunition and money by the Allies was considerably increased. The word "money" should be changed to "gold". The bandits were interested in the bolshevistic course in Greece, the Allies wanted to create unrest, and cause as much damage as possible to the German occupational authorities. In how far the interests of these two circles, which at that time worked in the same direction, were actually different in the end, has been shown by the development of the situation in Greece during the German occupation, particularly, however, by the increase in gravity in the political situation after the German evacuation.
If Churchill at the end of the above mentioned article comments on the routing of the partisans from Athens by the English, as follows: .... based upon this work the United States can occupy its positions today..., he forgets, that at the time when he supplied these same partisans from the air when he later fought against with all measures of modern warfare, and therewith supported their expansion, it was the German occupation force which prevented Greece from becoming bolshevistic at that time already.
For practical reasons and in this connection I now want to discuss in detail the evidence presented by the prosecution, and would like to consider first the assignment of General Felmy in Greece, insofar as it is concerned by the indictment.
General Felmy was transferred to Greece in June 1941 as Commander for Southern Greece and as Commander of the Special Staff F. Only his activities in connection with the first named position is of importance at this point. I believe that the minor importance of his assignment as Commander for Southern Greece has been sufficiently shown by the evidence. The special explanation of this fact is obviously found in the events connected with the person of General Felmy, which in the year 1940 led to his discharge and which made it appear inadvisable to the highest authorities to reinstate him in his former position in the Luftwaffe, in which he had held an important position.
The new field of activities which one believed could be entrusted to him, corresponded in its meaning with the distrust which one continued to have against him. At that time, Southern Greece was under Italian command. The Germans had practically nothing to say there. Merely the areas around the airports Tatoi, Eleusis and Kalamaki, the Southern part of the harbor Piraeus, several islands, some of which were not even occupied by German troops, the district Laurion and the island of Crete were under the control of General Felmy's office. The territorial subordination of Crete, which was confirmed by General Foertsch in his interrogation was even eliminated at a later date, as shown by Prosecution Exhibit No. 211. The personnel subordinate to the Commander of Southern Greece consisted of three Landesschuetzen Battalions, which were employed as guards.
The only duty of any practical significance was the supply of the island of Crete, for which purpose a special staff comprised of representatives of all three branches of the Wehrmacht was formed and placed under the command of General Felmy.
The situation, as far as partisans were concerned, was at that time completely quiet as I have already stated. The first and only attacks during this period occurred, as can be seen from the Activities Report of the Armed Forces Commander South-east for the month of June 1942 (Book VIII, Exh. 211, page 69 of the English, page 58 of the German text), in Athens against Wehrmacht vehicles as well as upon rail road tracks north of Athens. General Felmy was on lease during this period as is shown by his interrogation (German record page 6776, English record page 6929) and by the statement of Dr. Altenburgs, so that he could not have been connected with the reprisal measures which were ordered.
I shall insert now.
The same applies to the hostage shootings which took place in the Mossara Area which, apart from the surprise attack on the railroad line Liossia-Athens are charged to General Felmy in the plea of the Prosecution. This incident also occurred during the time when the defendant was deputized for by General Andre. Apart from this, the Messara Plain is located on Crete. That is outside of General Felmy's area of jurisdiction.
During the first assignment of General Felmy in Greece, the so-called "reprisal ratio-order" of 16 September 1941 was issued in which the High Command of the Wehrmacht ordered the well known ratio of 1:50 or 1: 100. At the time when this order was probably received by his office, General Felmy was not in Greece. If the order reached his office at that time, he himself could not have passed it on to the Landesschuetzen Battalions.
However, the assumption that this order was passed on by other members of his staff also appears misleading, since at that time there was no reason whatsoever to apply reprisal measures.
General Felmy learned of the reprisal quota order only at some time after his return to Greece In accordance with Prosecution Exhibit 68 the so-called "Kommando Rosenberg" was temporarily economically and disciplinary subordinated to the Commander of Southern Greece by a letter of the Military Commander Southeast.
This detachment consisted of a few soldiers who were given order to search Greek archives for certain material. General Felmy had actually nothing to do with this order and had no right to issue any orders whatsoever to that detachment. The fact that they were economically subordinated only meant that the members of the Kommando were mainly fed, clad and paid by the office of the Commander of Southern Greece.
Disciplinary subordination meant that these soldiers, in case of conduct unbecoming to a soldier when off duty, could be held responsible by the defendant.
Finally a word in reference to Prosecution Exhibit 69. Concerned is the order from the High Command of the Wehrmacht, dated 28 September 1941, to hold at all times a number of hostages of the different political factions, and a corresponding decree by the Armed Forces Commander Southeast. General Felmy does not remember this order. He also does not know whether it had been carried out at that time. This, however, is not likely since at that time no partisan problem was evident and the Italians were carrier of the territorial sovereignty in Southern Greece.
I have now discussed all documents which the Prosecution has used to incriminate General Felmy in connection with his first assignment in Greece, and which appeared to be in need of discussion.
The Prosecution has not charged General Felmy with incidents which occurred during the period from 23 July until 23 August 1941 in Serbia, during which time he took the place of Field Marshal List in his capacity as Armed Forces Commander Southeast. For the same of completeness, however, I will discuss this deputy mission in short and general terms.
It was a pure formality. Somebody had to be there to represent the territorial commander - and only this deputy ship is concerned here to the outside world and who, in cases which could not be postponed, could make a decision.
During this time also, General Felmy's official residence was continually in Athens and no deputy was appointed for him in his capacity as Commander for Southern Greece. General Foertsch came to Athens several times during the week to make his reports. As General Felmy has stated as a witness he did not issue any directives of basic importance. In cases of such brief representations which only served the purpose of a temporary bridge-over this was not customary in the Wehrmacht. Particularly, General Felmy did not order any reprisal measures during that time which concerned a territory that was not normally located within his district. He does not even remember the possible incidents which caused the reprisal measures.
After Field Marshal List returned from his leave he only informed him of the situation in Southern Greece, i.e. about his own district. If General Felmy would have ordered reprisal measures during this month, the attacks and acts of sabotage of the partisans in Serbia would not have increased to such an extent during this time and the situation would not have become so much worse, as it actually did.
Because of the reprisal measures which were carried out in later months, the attacks and acts of sabotage in Serbia decreased again.
In conclusion I would like to mention an individual case: It concerns the OKW-order of 23 July 1941 signed by Keitel. I mention this ease because it was also specifically mentioned in the indictment with regard to General Felmy. This document, according to the distribution list, is the second copy destined for the High Commander of the Navy. This order which clearly refers only to the Russian theater of war, as is shown through its contents and through its reference to the "spread of terror" and the use of "draconical measures" against the civilian population, was never delivered to the Armed Forces Commander South-East.
He can, therefore, not have worked on it nor, in particular, have distributed it, as the indictment charges.
During the time Field Marshal List was ill in October 1941 until General Kuntze entered upon his duties. General Felmy did not deputize for Field Marshal List. I refer in this connection to the interrogations of Felmy and Foertsch. General Kuntze was evidently mistaken when he voiced the opinion that General Felmy deputized for Field Marshal List as justiciary. If General Felmy had been appointed deputy, it would have had to be ordered, as in the case discussed before, by the OKW. This was not done, however, as Field Marshal List expressly confirmed in cross examination in the rebuttal and as is shown on page 1 of the document which was Exhibit 664.
I shall insert now.
In contrast to the presentation delivered by the Prosecution in the closing statement, this document, as well as Exhibit 18 of the Prosecution, shows that General Felmy deputized for Field Marshal List during his leave in July-August 1941 but only in his capacity as Armed Forces Commander Southeast. A corresponding entry for the period of Field Marshal List's illness in October 1941 cannot be found in a single document.
In order not to destroy the chronological sequence, I should like to discuss shortly here two orders of which the indictment alleges that all of the defendants, including General Felmy, have issued, carried out and passed them on. They are the Commissar Order and the Commando Order.
The Commissar Order has never been delivered to General Felmy, as the office of the Commander South-East did not exist yet at the time it was issued. General Felmy, therefore, cannot have "issued" nor "passed it on". Nor has he carried it out. The Prosecution has not submitted any evidence for this in spite of its claims.