The regiment at first reported the incident merely as an operation. It was the Greek propaganda which took up the matter, that startled General Felmy. The report of Sergent Koch of the Secret Police gave him the rest of the information. General Felmy reported the incident at once to the Army-Group E because the false description of it as a tactic operation of the 10 June 1944, given by the corps could not be maintained. The Army Group then ordered General Felmy to investigate the case. The investigation was carried out and finally the true facts of the case were brought out. General Felmy always definitely condemned the Distomon operation as an excess. This is very clearly revealed by the Giosecke affidavit. Dr. Giesecke was at the time military judge of the Corps Staff and therefore is the best of all to judge the attitude of the defendant with regard to the incidents in Distomon, especially since he personally conducted the interrogations of Sergeant Koch. If General Felmy stated that he agreed with the disciplinary settlement of the affair - which he was not at all entitled to do because the regiment was only tactically subordinate to him - then there is no doubt, that he merely did not want to understake anything upon the false report of the regiment. But he never thought of it to approve the Distomon operation as such. The SS had its own jurisdiction upon which Felmy had no influence whatsoever. If General Felmy had wanted to cover the excesses of the SS-Regiment in Distomon, as the Prosecution apparently warts to assert, then he certainly would not, of his own accord, have passed the matter on to the Army Group. I refer in this connection also to the affidavit of Hammer who at the time was serving on the staff of the Army Group E.
It appears somewhat strange also that in the two documents submitted by the Prosecution in the Distomon case exactly the reports of the LXVIII Army Corps to the Army Group E about the true incidents in Distomon are missing.
And there will be an interpolation here. If the Prosecution's brief says that Minister Neubacher turned to Weichs after the operation Distomon and not to Himmler, then his statement is already to be found in Prosecution Exhibit 484, in Document Book 21. According to this, General Felmy page 14 of the English, 29 of the German text, had reported to Army Group E that Neubacher had asked the office for submission of a report and that it replied to him that the report had already been submitted to Army Group E.
For completeness sake I would like to discuss briefly the deportation of manpower and the orders issued in consequence of the Italian capitulation.
With regard to the deportation I refer to the interrogation of the defendant. As may be seen from the affidavits of Heiden and Bohtz such transcripts were never ordered nor carried out by the LXVIII Army Corps. For the transport of workers, the utilization of which was exclusively in the hands of the Plenipotentiary General for the Utilization of Labor, hence a civilian office, the Corps was not at all the competent authority, However, the deportation of Partisan-suspects and hostages, which was ordered by the High Command of the Armed Forces and in my opinion is an absolutely permissable measure according to International Law, is an entirely different case. General Felmy, too, considered it thus, In the situation report of the military commander of Greece of 13 June 1944 it speaks of an order of the LXVIII Amy Corps, to have persons of the type just mentioned ready to be deported to Germany. Whether this transport, ordered by a higher authority, was actually carried out is not revealed in the document, nor does General Felmy know because he did not occupy himself with the matter personally. The same considerations held true for the case cited in the Estimate of the Situation of the 117 Light Infantry Division of 30 October 1943. Finally the war diary of the Army Group E for the time from 1 July to 31 August 1944 is to be mentioned yet. According to the entry of 27 August, among other things an order had been issued to the LXVII Army Corps to intensify the alert of the units assigned to protect the stretch for the time when a transport of Partisan-suspects to the Reich was to be carried out.
In this case the LXVIII Army Corps had nothing whatsoever to do with the desertation of the Parisan-suspects in itself, it merely ordered the subordinate regiment for railway-security to keep a closer watch on the stretch. It is to be doubted whether the order of the Army-Group E here under consideration has ever come to the knowledge of General Felmy as he can not recall the order. In view of the secondary importance of the matter it is most likely that only the respective Referent of the Corps-Staff dealt with it.
Finally in connection with the capitulation of the Italian Occupation Forces I would like to refer to the Prosecution's Exhibits 317 and 323 in Volume XIII and likewise 445 An Volume XIX and to the interrogation of the defendant and lastly to the affidavits of G yldenfeldt and of Scheure.
The order issued by the High Command of the Armed Forces concerning the treatment of the capitulating Italian soldiers was considerably extenuated in its primary conditions, as may be seen from the teletype message of the LXVIII Armee-Corps to the 1st Armored Division for the turning over of arms by Italian officers to the Partisans (Banden), which according to the order of the High Command of the Armed Forces was to be followed by execution, had moreover to be accompanied according to the teletype message of the Corps - by the fact that the officers had made common cause with the rebels. In such cases however the Italians placed themselves unquestionably as guerrillas on the side of the Partisans. Therefore at least the extenuated order cannot be considered as contrary to International Law.
Decisive for the judging of the situation is the fact however, that the capitulation of Italy in the district of the Army Group Southern Greece which was then under the command of General Felmy, was carried out pretty smoothly. That was possible on the one hand because the good cooperation of his office with the High Command 11 of the Italian Army, whose German Chief of General Staff, General von Gyldenfeldt, had been transferred in the same capacity to the Army Group Southern Greece, and on the other hand due to the fact that the Italian units absolutely obeyed the orders issued by the 11th Italian Army.
For this reason the order in question was not applied within the district of the Army Group Southern Greece.
Your Honors, I have now finished the discussion about the events which are shown in the documents, introduced by the Prosecution against General Felmy.
I have now only to repudiate the reproach of the Prosecution that my client made false statements in his testimony concerning different points. The Prosecution has in order to prove it, examined the witness Willi Finger in the rebuttal precedings in the afternoon of the 20th and the morning of the 21th January. From the technical point of view I have to state beforehand that at this moment in which this transcript is made, I am not yet in the possession of the German records concerning Finger's and Felmy's interrogations on 20 to 22 January, but that with great difficulties I have received only a draft. Therefore I am not in a position to quote the pages of the record.
Regarding the matter itself I want to point out the following:
The witness spoke at first about four proclamations which he allegedly had read in the Peloponnesus at this time. He has however only described three. The first from the beginning of January 1944, is supposed to have discussed the murder of a "higher German Officer" and the threat of severe reprisals in case the perpetrator did not report himself without delay, and they were - the same as the two later proclamations - allegedly signed by the "Befehlshaber Commander Air Force General Felmy". The second proclamation which according to the testimony of the witness was issued not more than 8 days later, reports the hanging of 100 Greek hostages as reprisal for the attack at the end of January and the beginning of February. Finally a third proclamation threatened the Greek population with the well known reprisal quote of 1 : 100, res. 1 : 50.
General Felmy testified to this matter that he neither had ordered the issuing of these proclamations, mentioned by Finger, nor even had any knowledge of them. This appears quite credible, if one bears in mind that General Felmy, as he had testified himself in the witness stand and as it is evident from the entries which he made at this time in his diary, had been in Greece only for a short while during the period in question.
He only returned from his leave on the afternoon of 13 January 1944 and he left again for his flight back to Posen on the morning of 22 January.
He did not land again on the aerodome of Athens until the afternoon of 3 February.
With regard to his alleged signing of the proclamations, it can not be assumed that the defendant signed with his rank, with his grade and finally also with his name. Official proclamations of the Wehrmacht were usually not signed in this way. Apart from that, it would not have only said "Commander" but it would have stated what he commanded, for instance "Commander of Southern Greece", finally General Felmy did not bear this title at this time. If he had issued these proclamations, he would have issued them under his true title "Commanding General". It also has to be added with regard to this point that General Felmy had no reason to have these placards posted, because that would have been the duty of the combat commander of the Peloponnesus who was responsible for the reprisals in this district. With regard to the contents of the placards mentioned by the witness Finger the following is to be said:
In the beginning of January 1944 neither a "higher German officer" nor a General was murdered in the Peloponnesus. This would certainly have come to the knowledge of General Felmy. This fact is not mentioned in the documents and especially not in the Felmy Document Book IV submitted by me as the complete War Diary of the LXVIII Corps for the first half of the year 1944 which represents a supplement of the Prosecution documents. According to it nothing extraordinary had happenen within the district of this corps during the whole month of January, nothing which could have remained in General Felmy's memory. With regard to the contents of the third proclamation of the end of January and the beginning of February, it seems impossible that at this date the order regarding the reprisal quota, was published, since, it was abrogated as it is generally known through the Loeh R order of 23 December 1943 which had been mentioned several times and which repealed the fixed reprisal quotas.
In this connection it should also be mentioned that there need not be any connection between hostages in whose transportation he participated and the people allegedly executed according to the proclamation and that it obviously was unknown to the witness that the hostages who were taken from the houses, had been examined beforehand, concerning their connection with the partisans. The Prosecution is evidently very much interested to bring the murder of the "higher German Officer" which was reported by the witness into connection with the case of Krech in order to represent General Felmy as untrustworthy on the basis of his testimony in this matter and with regard to the use of reprisal quotas in general. This construction, however, is incompatible with the facts. Amongst other things it has been established on the basis of the documents, that General Krech was only murdered on 27 April 1944, at a time, by the way when General Felmy was not present in Athens.
The order to set up the 41st "Fortress Division" was only transmitted from the Army Group E to the LXVIII Corps in the beginning of February. General Krech who was appointed its commander and who had not been on duty in Greece up to this date, could not have arrived on the Peloponnesus before the month of February at the earliest. The attack on him and the command accompanying him, took place in the Southeastern Peloponnesus near Molai at the end of April. Therefore there was no reason to post placards in the Northwestern Peloponnesus in which the perpetrator is asked to report, and to hang the hostages in Patras. According to the dispatches, the 100 hostages were shot on 30 April 1944 on the independent order of Colonel Papadongonas.
It is strange that the witness himself neither mentioned a general who allegedly had been murdered - only the Prosecutor mentioned this fact during the examination - nor that the name of General Krech was mentioned during the examination. The statement which the prosecutor made on the occasion of General Felmy's interrogation in Rebuttal, namely that the witness Finger wanted to repudiate "the testimony of the defendant concerning the execution of 100 hostages as a reprisal for the death of General Krech.
..." does therefore not agree with the testimony of the witness Finger.
Quite apart from the construction of the prosecution, this does not agree in any respect with the facts, as I believe I have already pointed out sufficiently. In view of the special character of the Rebuttal-procedings and of the fact that because of the shortage of time, I had no possibility to make any investigations after the completion of this precedings, I want to leave it undecided, whether Finger has deliberately told an untruth or whether he only made several mistakes in his statements. There is a strong probability to assume the former. No spectator or listener to the interrogation of the witness Finger could doubt that he is the type of political fanatic, for whom the soldiers uniform means the same as the red cloth for the bull. His hatred for everything military which he identifies with the idea of Fascism has obviously been increased by several sentences which he received. It is remarkable that the penitentiary term of 15 years was not mentioned during his direct examination by the Prosecution. It is also strange that since the Presiding Judge of the Court martial which sentenced him then, was the Judge of the Army Corps LXVIII by the name of Buschenhagen, General Felmy had signed the indictment and had forwarded the verdict to the Army Group for confirmation together with a recommendation. It would not be difficult to assume that Finger deliberately transferred the signature of General Felmy from the incriminating indictment to the alleged placards in order to take his revenge. Anyway he put himself at the disposal of the Prosecution which to start with obviously was not too much interested in his testimony.
At least memory failed the witness Finger badly, so that on the basis of the fact that he read the name of the defendant Felmy in the paper this certain combination of thoughts was released. This can already be assumed from the improbably alleged signature under the proclamation, described by him, particularly as the events which he described occured several years ago. The witness does not seem to have the ability, owing to his easily recognizable disposition to probe matters thoroughly with his memory or his intelligence.
He spoke for instance of the district round Patras as the South-western Peloponnesus, designated the fortress battalion to which he belonged only with the number "999", although there was a Roman figure before the Arabic one. The court which sentenced him to a penitentiary term of 15 years, he called in short intervals Court Martial, Higher Field Court and Field Court. By the way all three designations are incorrect. Finally he contended that he then had written to the Court, resp. to the Palace of Justice in Nuremberg and that he had categorically repudiated the objection that he probably had chosen a different address, with the words "No, never!" As it turned out later on, he really had addressed this letter to the Evidence Division.
I believe that with these arguments I have characterized sufficiently the interrogation of the witness Finger.
This witness could not shake in the least in any respect or on any point the testimony which General Felmy gave before in the witness stand.
May it please the tribunal, I am about to finish my plea.
The material submitted as a basis for your decision is very extensive. The defense is interested in its evaluation in toto. The arguments of the prosecution, in line with their one sided position of attack, have to be placed into the connections out of which alone they can be understood. The numerous individual incidents contained in the documents of the prosecution were the result of adequate causes in every case. And beyond the particularities of the individual causes the situation in toto is to he considered which, as I tried to show, can only be understood from a historical point of view. Those are the objective, supplementary facts. The defendant Felmy was placed into this special situation in Southern Greece. As Aeschylos said "Fate plays a part in everything". General Felmy was ordered to Greece in 1941 for the first time in order to serve in a capacity, subordinate in comparison with his military past, due to qualities of his character, the lack of which all defendants are reproached for today.
General Felmy would certainly have preferred to be used at a genuine front somewhere as a flier than to be charged with tasks in Southern Greece only loosely connected with military service. He had to take a stand towards the occurrences appearing on his horizon to an ever increasing degrees He had to take a stand towards them somehow and to give an opportunity to the spiritual functions of his mind, feeling, and will to react towards the incidents around him. And he had to ask his conscience which stand he should take. Previously, in an other connection, I believe to have shown clearly enough in which way his connection was established with happenings in Southern Greece. From the picture of his character alone it may be concluded with compelling reasoning that he endeavoured to do justice to things-as far he was connected with them - as well as was humanely possible, beyond mere military thinking and national boundaries of a spiritual kind. I do not want to discuss again in detail the large number of affidavits, covering nearly the whole period of his life, made by people in various walks of life. There judgement of General Felmy expressed therein is unanimous. And the psychological question presents itself: Is a man whose character has been judged generally and clearly in such a positive way, capable at all of acting in a criminal way?
With regard to his state of mind the prosecution fails to take a definite stand. When, in passing, a reference is being made as is done in the opening statement, it is done only superficially.
The indictment cancels itself eo ipso by failing to prove in any way the assertion which was also submitted in the case of General Felmy, i.e. of the systematic extermination and destruction of the Greek population based on a alleged low opinion of foreign people which assumption alone, would he a prerequisite for the prosecution of the defendants.
We wonder whether the prosecutor in cross-examining General Felmy had the same impression when he stated: "We will accept your opinion that in your Corps area you believed that reprisal measures were properly applied"?"Serious is the picture of necessity" says Friedrich Schiller in the Wallenstein monologue.
General Felmy was always conscious of this seriousness in view of the reprisals to be taken. He always endeavoured to show his leniency wherever it was not contrary to "military necessities". His mildness was a basic feature of his nature, significant of him and confirmed by many. In Greece it earned him the appellation "too soft" on the part of many, On the other side he was obliged to make them prevail, if it was required in the interest of the preservation of the general military position as well as in the interest of his soldiers and the protection of the good elements of the Greek population cooperating with the Germans.
This question seems to be justified: Would a general of any other army in General Felmy's position have been able to take an attitude different from Felmy's towards these occurrences and would he have taken it? I believe I can answer this question only in the affirmative, in a way, negative from the point of view of the prosecution. It is not difficult to gather from decree No. 1 of the Military Government how the American occupation army in cases even by less complicated, occurring in occupied German territory, would have reacted. There a large number of acts are forbidden under the penalty of death.
Finally the extensive connections of the last war must not be overlooked as one theater of war can not be separated from the other, neither in a spiritual nor moral respect. To what however have we come in this last terrible struggle, if we take as a starting point the world of the Hague rules of land warfare which are supposed to be the basis of substantive law for these proceedings. For the purpose of illustration I want to mention one example only:
"The City of Wuerzburg having hardly any war important industry was destroyed by the R.A.F. for the most part on 16 March 1945, in a raid lasting 20 minutes, 2 weeks before American troops entered, i.e. at a time when the war had been decided. Of 120,000 Inhabitants only 6,000 could be housed in the city's ruins immediately after the attack and at that only provisionally often. Thousands of people, mostly women, aged men and children lost their lives besides very many wounded about 10,000 of which had been taken to about 25 hospitals in the city. Many monuments especially valuable from a point of view of the history of art were almost completely destroyed. On 44 churches, 36 were destroyed, the other 8 damaged. Only the few military installations escaped distruction, namely the barracks and a part of the air port.
"This, Your Honors, is the face of the last war which could not remain hidden from General Felmy far away, but it did not cause him to deviate the least from his fundamental attitude rooted in his old soldierly tradition. He continued to be guided by the "military necessities" of the Nague Rules of Land Warfare." And the attitude taken towards the Greek population by a man called "fit to lead foreign peoples" in an opinion submitted by the prosecution is best evidenced by his last activity when he, after all the numerous other offices had left, became "dictator". I will not go into details but will only refer to the testimony of the witness Berghofer who has described the surrender of huge quantities of supply goods of all kinds to the Greek and to the affidavit of the Swiss Legation Councillor Escher which are supplemented by the interrogation of the witness Freiherr von Varnbuehler also for the subsequent assignment of General Felmy's in Seyrimia General Felmy tried, as is shown in Escher's statements, with all means to ensure that the capital Athens should be taken over by the English as soon as possible after the German troops had marched off in order to prevent its falling into the hands of the bands, and declared it an "open town" in order to avoid destructions.
The defendant, who had always, and in several respects, been specially interested in the shrines of art of old Greece, refused in contrast to the English who entered soon after he had left, to have the town bombarded in the fight against the bands. in order not to harm innocent people and not to destroy the works of an old civilization. If one further considers that in disobedience to a clear order, he did not blow up the Marathon Dam, in order not to endanger the water supply of Athens which mostly depended on the stowed water of the lake, and to prevent pestilences with unforseeable consequences, it is easy to see what general Felmy did for Athens and its population and, with it, for Greece. His last symbolic act in the capital of the country before he marched of f, was to deposit a wreath on the grave of the Unknown Greek Soldier, This gesture symbolizes at the same time his human and soldierly way's.
"If you, Your Honors, in your deliberations, will take into account all the connections described by me only in short outline which alone render it possible to recognize the true facts, then this is my conviction - the judgment on General Felmy cannot bE doubtful."
THE PRESIDENT: Dr. Gawlik, please:
Earlier this afternoon you made a request, an application to the Tribunal wherein you sought permission to confer with your client tomorrow, Sunday.
It is the judgment of the Tribunal that matters concerning these closing arguments and your reply to any statement made by the prosecution will necessarily have to be checked by you. It is a matter of argumentation rather than any assistance which your client could give you. We feel certain that you can handle the matter and if there is any help which your client needs to give you, he can give it to you by written memorandum.
Your application and request will be denied.
It should be kept in mind by all counsel that Monday the defense counsel will be given two hours, if they care to make use of that, time to reply to any matters which were brought up by the Prosecution and which they did not have an opportunity to comment upon in their own arguments.
We do not want a repetition of matters which were included in their own closing arguments and statements. The defense counsel -or the Prosecution -- will then have an hour and a half, if they care to make use of it, to reply. Following that, the defendants may address the Court and will be given ten minutes each, if they care to make use of the time.
Will counsel who are here advise the other defense counsel that the Monday session will commence at nine o'clock?
The Tribunal will now recess until Monday at nine o'clock.
(The Tribunal adjourned until 0900 Hours 9 February 1948.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Wilhelm List, et al, defendants sitting at Nurnberg, Germany on 9 February 1948, 0900, Judge Carter presiding.
THE MARSHAL: All persons in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal V. Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, you will ascertain as to whether or not all defendants are present in the courtroom.
THE MARSHAL: May it please your Honors, all defendants are present in the courtroom.
THE PRESIDENT: Judge Carter will preside.
PRESIDING JUDGE CARTER: We will hear the defense at this time on any matters they have not had an opportunity present, due to the fact that they did not anticipate them at the time they made their prepared statements.
DR. LATERNSER: If it please the Tribunal, I am to talk openly considerably shocked by the low level in which the prosecution has summarized the results of this important trial. With all emphasis I would like to refute all the personal insults which have been raised against my client. I will not deal with them in detail because I do not intend to emulate the prosecution. I intend to be quite factual, which is also the desire of Field Marshal List. The evidence of the defense is refuted by the statement that 90% of it is not worthy of credence, however, that is where the matter rests. That the prosecution has not undertaken any other attempts at rebuttal proves, however, that it is not in a position to do so. If some witnesses in this trial had made their statements while using notes which seems quite comprehensible considering the abundance of material, this circumstances does not entitle the prosecution to maintain that all witnesses' testimony had no value, further it does not apply to the testimonies of Field Marshall List and his witnesses, quite apart from the fact that the prosecution should consider the pertinent circumstances before making such an assertion.
I should now like to deal with the individual points of the statement because I think it necessary to reply to them because of their factual incorrectness. One completely unfounded assertion is that Field Marshal von Weichs issued an order where one hundred civilians were to be executed in retaliation for German soldier. Such an order was not presented by the prosecution, merely an announcement to the population that a shooting had taken place. The prosecution never attempted to produce proof for the executions. The war diary of the 2nd Panzer Army also never reached Nurnberg. In it there were no entries which would show the existence of such an order, let alone its execution. Thus also further assertion of the prosecution that Field Marshal List got his reprisal quotas from this alleged but never proved order comes to naught. Field Marshall List never ordered , quote: The prosecution maintains that according to Fuehrer Directive 31 of May 1941, the Serbian area was under the direction of Field Marshal List. Through their own documents of the prosecution it becomes apparent that Serbia only belonged as of 23 June 1941 to the command area of Field-Marshall List.
The prosecution further maintains that Field Marshal List had decided to pass on the OKW order of 16 September instead of leaving it in the files, as he supposedly could have done. With all emphasis I should like to point out that the prosecution has never brought the slightest evidence of a passing on of this order. From a distribution of this order it becomes apparent that it was an order directly sent by OKW to the subordinate commander of Field Marshal List. Further, the prosecution says that Field Marshal List participated in so--called "lootings" of the Rosenberg agency. This is not so. The prosecution never proved that this detachment Rosenberg which was not subordinate to Field Marshal List took objects away from Greece or even looted.
Such assertions should be made in the final plea only if a proof is also adduced. The prosecution claims also during the reprisal measures in Topola only Jews were executed. That is not correct. The documents of the prosecution itself mention only inmates. I have already shown that Field Marshal List neither in the Balkans nor during his activities in Russia knew anything of the commissar order or its carrying it out. The prosecution attempted to impeach this testimony by quoting what General Leyser said, that the commissar order was known and much discussed. However the statement of General Leyser refers to the year 1941- whereas Field Marshal List only took over command in the second half of the year 1942. It is furthermore merely an assertion of the prosecution and has remained so, that reports of subordinate units were sent to Field Marshal List from which he would have learned of it. From the documents submitted it becomes very clear that the reports did not reach the agency of Field Marshal List. The prosecution wanted to prove with the staff order signed by Field Marshal List on 30 October 1941 that Field Marshal List carried on official business after the 15th of October. I am grateful for the help of the Tribunal and it is based on this help that the missing part of document 664 was presented which the prosecution had taken the page and had attempted to prove. The opposite of what became apparent from the whole document. According to that also Field Marshal List on the 13th of October was in the hospital because of a serious illness and subsequent operation and the official business had been transferred prior to that date for his successor.
May it please the tribunal, this is what I call the climax of distortion of this trial, if the prosecution after all this evidence which has been presented to the effect that Field Marshal List fell ill on the 15th of October want to use this document and want to call this sickness a legend and want to prove by it that Field Marshal List's statements are not correct?
Unequivocal proof has been produced that Field Marshal List as of the 15th of October concluded his service in the Balkans.
May it please the tribunal, I have concluded my statements. I now have to put the fate of Field Marshal List into your hands.
DR. MENZEL (for General Kuntze): May it please the tribunal, as defense counsel for the defendant General Kuntze I would like to deal briefly with the following points which appeared in the final statement of the prosecution. This will take only a very short time. One: The prosecution has in order to prove its assertions against General Kuntze mentioned shootings on the 22nd, 30th, and 31st of October and 19th of November 1941, however without any reference to the documents which are being used for this purpose. I assume that the prosecution is referring to exhibit 135 document book 6 pages 8-11 in the German text and 11-14. in the English means the shootings ordered by the plenipotentiary commanding general in Serbia and therefore I would like to make the following comments to this document. The contents of this document has in part been wrongly reproduced, by the prosecution thus the order of the plenipotentiary commanding general in Serbia dated 30 October refers to the execution of a shooting of two hundred hostages and not as the prosecution assorted of eight hundred. A report of the 19th of November about a shooting which had been carried out dealing with two hundred fifty hostages is not contained in this document nor in any other documents of the prosecution. These orders of the plenipotentiary commanding general did as the document itself proved and as becomes apparent in Kuntze's Exhibit 65 document book III - page 38 -- not reach the Armed Forces Commander Southeast and therefore could not become known to General Kuntze. These were measures Court No. V, Case No. VII.
which-although they were ordered by the plenipotentiary commanding general of Serbia-wer not proved by any of the documents to have been carried out. If these orders had been carried out, their execution would have appeared in reports from the Plenipotentiary Commanding General to the Armed Forces Commander Southeast which however is not the case. The prosecution has maintained merely on the basis of the testimony of Lattmann that the words "standrechtlich erschlossen" mean that shootings were carried out without a courts-martial procedure. The prosecution believes with this testimony to have refuted the unanimous statements of the defendants and of the numerous witnesses of the defense. But a close examination of the testimony of the witness Lattmann shows that it is not a refutation but a confirmation of the testimony of the defendants and their witnesses. The witness Lattmann has on the 19 of January 1948 testified the following (this is contained in page 9048 of the German and 9233/34 of the English record. In the OKH he had one day been submitted a decree which had already been signed by the commander in chief of the army, Fieldmarshal von Brauchitsch. In this decree the words "standrechtlich erschossen" were used. From the balance of the contents of the decree it had become apparent that courts-martial proceedings were to be carried out. As legal advisor of the OKH he thought it more expedient to substitute for "standrechtlich" "standgerichtlich". This very clearly shows that a certain expression did not have to be used and even with the OKH the word "standrechtlich" was used for "standgerichtlich". If that was the case for the OKH then it is even more comprehensible that "standrechtlich erschossen" was used by the troops for "shot after court-martial." The witness states on page 9053 of the German record and page 9238 of the English record that he did not know whether a difference between "standrechtlich" and "standgerichtlich" was even known to the troops. From the documents the inter-changable use of these expressions was proved sufficiently and it also becomes apparent from the document that the expressions "examination" or "interrogation" meant in the reports the carrying out of summary Court No. V, Case No. VII.
courts-martial proceedings. Compare this with the reports of 18th or 20th of July 1942 in exhibit 208, document book 8, on pages 43 of the German and 50-52 of the English, also the prosecution witness BachO Zelewski has confirmed that these expressions were used inter-changeably by the troops for the carrying out of courts-martial. That becomes apparent from page 8128 of the German and 9004. of the English record.
Now I would like to make a brief insertion. The prosecution on page 9439 maintains again that the decrease of the reprisal quota of 1:50 or 1:25 respectively was not ordered by General Bader owing to General Kuntze's intervention or rather that General Kuntze's intervention was by no means proved. This assertion of the prosecution is incorrect and in this connection I should like to refer to our proof shown in the Kuntze plea on page 32 -- furthermore, I continue with my insertion--the prosecution has made the completely new assertion that captured partisans were shot as a matter of principle . The contrary is shown by the large number of captured partisans according to the documents which appear on page 65 of final plea Kuntze.
I continue on page 3 middle of the page and I shall very shortly have concluded my statement. The following point is of decisive importance for the evaluation of General Kuntze's responsibility, therefore I shall be very grateful to the tribunal if it would give particular consideration to the following statements when evaluating the evidence and deciding upon the judgment. The prosecution has said in its final statement that is in the last sentence of the final statement about General Kuntze -- that from a statistical point of view most of the reprisal measures were carried out during the tenure of General Kuntze. That statement which was not proved by any statistics is quite decisively an error and not justified. I have already in my final plea on pages 53-57 shown on the basis of the reports to Armed Forces Commander Southeast and the reports of that agency to the OKH which adequately cover General Kuntze's tenure how many reprisal measures Court No. V, base No. VII.