In June 1941, this corps was transferred to East Prussia where it was subordinated to the 9th Army in the fighting against the Russians. From the middle of July 1941 to October 1941, the corps was subordinated to the 18th Army. Pursuant to orders previously received, the corps, on or about 8 October 1941, commenced operations for its transfer to the Crimea which were concluded on 20 October 1941. It was upon the arrival of Kuntze in the Crimea that he received the order to report to Hitler that resulted in his appointment as Deputy Wehrmacht Commander Southeast.
The defendant Kuntze is charged with issuing, distributing and executing the Commissar order of 6 Jane 1941 wherein Hitler ordered the killing of captured Commissars. In this connection, evidence was offered that from 1 July 1942 to 4 July 1942, captured Commissars were killed by the 217th Infantry Division. The evidence shows that this division was subordinated to the 42nd Corps from August 1941 until the corps was transferred to the Crimea. Consequently, the defendant Kuntze is not chargeable with the acts of the 217th Infantry Division that occurred prior to August 1941. Evidence was also offered showing that units of the 61st Infantry Division killed a number of captured Commissars between 26 September 1941 and 28 October 1941. It is evident that the killing of political Commissars after 6 October 1941 cannot be charged to the defendant Kuntze for the reason that the 42nd Corps was on that date moving to the Crimea. Tie blot Infantry Divivion remained behind and in the very nature of things was no of longer subordinate to the 42nd Corps. There appears in the War Diary of the 61st Infantry Division, however, under date of 26 September 1941, a recitation of the shooting to death of saboteurs and commissars by the Field Gendarme Squad 161a, a unit subordinate to the 61st Infantry Division. The defendant Kuntze admits that the 61st Infantry Division was subordinate to him from the middle of September 1941 to the first part of October of the same year. He denies that he ordered any such action or authorized anyone to carry it out. He states that he had never heard of this incident and had no knowledge of the shooting of any Commissar by any unit subordinate to him.
He states further that the army commander to whom he was subordinate had specifically directed him to treat commissars as prisoners of war and that he complied in all respects with that order. We do not think the foregoing evidence is sufficient to hold the defendant criminally responsible for the issuance, distribution or execution of the Commissar Order. Nor does the evidence establish that the Commissar Order was made effective in the Balkan area. It will not sustain a finding that this order was issued, distributed or executed by the defendant Kuntze during the time he was Deputy Wehrmacht Commander Southeast.
This defendant is also charged with issuing, distributing and executing the Commando Order of 18 October 1942 during the period of his command in the Balkans. By this order, issued by Hitler in person, all sabotage troops generally referred to as commandoes, were to be shot immediately upon capture. The record shows that Kuntze was relieved of his command by General Loehr on 8 August 1942. Consequently, the order was not issued until after Kuntze had left the southeastern area. The prosecution has not attempted to disprove this fact and it must be treated as established. The defendant Kuntze has not been shown to have violated any duty with reference to his treatment of commandos or other groups mentioned in the Commando Order.
We hold also that the resistance forces with which we are here concerned were not entitled to be classed as lawful belligerents during the period the defendant Kuntze was Deputy Wehrmacht Commander Southeast. The reasons stated in the treatment of this subject in its relation to the defendant List apply as well to the defendant Kuntze and they will not be repeated here. No criminal responsibility can therefore attach to him because of the killing of captured members of the resistance forces, they being franc-tireurs subject to such punishment.
The defendant Kuntze contends that a right exists to take reprisals by killing hostages and reprisal prisoners in retaliation for the criminal acts of the resistance forces and other unknown persons. He asserts also that members of bands and those supporting them were used for reprisal purposes and that he knew of no instance where a contrary course was pursued.
He denies that excessive and disproportionate reprisals were taken and claims to have had little or no knowledge of the harsh measures taken as shown by the war diaries, orders and reports offered in evidence. He further contends that the measures taken were prescribed by superiors whose orders he was bound to follow. The legal questions thus raised have been dealt with in disposing of the case against the defendant List and will not for reasons of brevity be repeated here. The factual situation will however be examined.
The defendant Kuntze assumed command in the Southeast on 27 October 1941, a month which exceeded all previous monthly records in killing, innocent members of the population in reprisal for the criminal acts of unknown persons. On 9 October 1941, 2200 communists and Jews were shot in reprisal for 22 German soldiers of the 521st Signal Regiment murdered at Topola; on 18 October 1941, 1736 men and 19 communist women were shot in reprisal for German losses sustained in the fight for Kraljevo; on 19 October 1941, 182 men were shot to death in Mackovac and 1600 men from Valjevo were shot to death in reprisal for 16 Germans killed and 24 wounded; on 21 October 1941, 2300 Serbs of various ages and professions were shot to death; on 27 October 1941, 101 arrestees were shot to death with further killings to be carried out after more arrestees had been turned in; and on 28 October 1941, 2200 Serbs were shot for 10 German soldiers killed and 24 wounded in action. It seems highly improbable that Kuntze could step into the command in the Southeast in the midst of the carrying out and reporting of these reprisal actions without gaining knowledge and approval. Reports made to the defendant Kuntze, shown in the evidence, reveal that on 29 October 1941, 76 persons were shot in reprisal in Serbia; on 2 November 1941, 125 persons were shot to death at Valjevo; and on 27 November 1941, 265 communists were shot as a reprisal measure at Valjevo. Under date of 31 October 1941, the Commanding General in Serbia, General Boehme, recapitulated the shootings in Serbia in a report to Kuntze as follows: "Shootings: 405 hostages in Belgrade (total up to now in Belgrade 4750). 90 communists in Camp Sabac. 2300 hostages in Kragujevac. 1700 hostages in Kraljevo." In a similar report under date of 30 November 1941, General Boehme reported to Kuntze as follows:
"Shot as hostages (total) 534 (500 of these by Serbian Auxiliary Police)." Many other similar shootings are shown by the record. Included was a report covering the whole period of who resistance movement up to and including 5 December 1941 wherein it is show that 31,338 reprisal prisoners were to be shot on the basis of the 100 to 1 order, that 11,164 had been shot and that 20,174 remained to be shot in reprisal to fulfill the quota fixed on the 100 to 1 basis.
THE PRESIDENT: The Tribunal will take its noon recess at this time and reconvene at one-thirty.
THE MARSHAL: The Tribunal will be in recess until thirteen-thirty.
(The Tribunal adjourned until 1330 hours, 19 February 1948).
AFTERNOON SESSION "The Tribunal reconvened at 1330 hours, 19 February 1948)
THE MARSHAL: The Tribunal is again in session.
JUDGE BURKE: On 5 December 1941, the new Commanding General in Serbia, General Bader, ordered the basic reprisal ration reduced to 50 reprisal prisoners for each German killed and 25 for each German wounded. The defendant Kuntze asserts that this reduction of ratio was in a large part due to his insistence and effort in that direction. Thereafter the killing of hostages and reprisal prisoners continued. In a daily report to the defendant Kuntze, General Bader stated that 449 reprisal prisoners were shot to death in January 1942 and the 3484 additional shootings had been ordered to commence immediately to balance the reprisal killings against the Germans killed and wounded on the fixed ratio. On 21 February 1942, General Bader reported the shooting of 570 communists by the Serbian auxiliary Gendarmie, on 23 February 1942 the shooting of 403 reprisal prisoners and on 25 February 1942 the shooting of 110 communists in reprisals.
On 19 March 1942, the defendant Kuntze issued an order regarding the combatting of insurgents which stated in part: "I expect troop leaders of all ranks to show special energy and ruthless action as well as to commit fully their own person for the duty with which they are charged, which is to preserve quiet, order and security by all means. All soldiers who do not follow orders and who do not act decisively are to be called to account. By means of brutal police and secret police measures, the formation of insurgent bands is to be recognized in its inception and to be burnt out. Captured insurgents are to be hanged or to be shot to death as a matter of principle; if they are being used for reconnaissance purposes, it merely means a slight delay in their death." In the directives accompanying the foregoing order, it was stated: "The more unequivocal and the harder reprisal measures are applied from the beginning the less it will become necessary to apply them at a later date.
No false sentimentalities. It is preferable that 50 suspects are liquidated than one German soldier lose his life, Villages with Communist Administration are to be destroyed and men are to be taken along as hostages. If it is not possible to produce the people who have participated in any way in the insurrection or to seize them, reprisal measures of a general kind may be deemed advisable, for instance the shooting to death of all male inhabitants from the nearest villages, according to a definite ratio (for instance 1 German dead -- 100 Serbs, 1 German wounded -- 50 Serbs)." The shooting of large numbers of reprisal prisoners and hostages was reported to Kuntze after the issuance of the foregoing order and directive.
Although he was advised of all these killings of innocent persons in reprisal for the actions of bands or unknown members of the population, Kuntze not only failed to take steps to prevent their recurrence but he urged more severe action upon his subordinate commanders. Not once did he attempt to halt these disproportionate reprisals. He directed the burning down of all villages having a communist administration and the taking of all the male inhabitants as hostages. He directed the taking of reprisal measures against the population generally such as the shooting to death of all the male inhabitants of the nearest village on the basis of 100 for each German killed and 50 for each German wounded. In many cases persons were shot in reprisal who were being hold in collecting camps without there being any connection whatever with the crime committed, actual, geographical or otherwise. Reprisal orders were not grounded on judicial findings. The order and directives which brought about the killing of these innocent members of the population constitute violations of international law which are punishable as crimes. The orders he issued and his subsequent failure to take steps to end these unlawful killings after they had been reported to him makes him criminally responsible under the law previously announced and applied in this opinion to the defendant List.
With reference to the alleged mistreatment of Jews and other racial groups within the area commanded by the defendant Kuntze during the time he was Deputy Wehrmacht Commander Southeast, the record shows the following: On 3 November 1941, the Chief of the Administrative Staff, an official subordinate to General Boehme, who was in turn subordinate to the defendant Kuntze, ordered the immediate arrest of all Jews and Gypsies as hostages and the deportation of their wives and children to an assembly camp near Belgrade. On 4 November 1941, a detailed report concerning the shooting of Jews and Gypsies between 27 and 30 October 1941 is shown in the War Diary of the 433rd Infantry Regiment. The lurid details of the shooting of those 2200 persons is graphically recited in this report. A report under date of 5 December 1941 containing the notes of the Wehrmacht Commander Southeast (Kuntze) made on a tour of inspection, says in part: "All Jews and Gypsies are to be transferred into a concentration camp at Semlin (at present there are about 16,000 people there). They were proven to be the bearers of the communication service of the insurgents. On 4 February 1942, the 704th Infantry Division reported to General Bader that it had delivered 161 partisans, 17 Jews and 2 Jewesses to the SD - Belgrade. On 19 March 1942, General Bader reported to the defendant Kuntze that 500 Jews had been transported from Metrovica to Semlin. On 10 March 1942, General Bader reported to Kuntze that in the Jewish camp of Semlin there were 5780 persons, mostly women and children. On 20 April 1942, General Bader reported to the defendant Kuntze that in the concentration camps there were 182 hostages, 3266 reprisal prisoners and 4005 Jews.
The foregoing evidence shows the collection of Jews in concentration camps and the killing of one large group of Jews and Gypsies shortly after the defendant assumed command in the Southeast by units that were subordinate to him.
The record does not show that the defendant Kuntze ordered the shooting of Jews or their transfer to a collecting camp. The evidence does show that he had notice from the reports that units subordinate to him did carry out the shooting of a large group of Jews and Gypsies as hereinbefore mentioned. He did have knowledge that troops subordinate to him were collecting and transporting Jews to collecting camps. Nowhere in the reports is it shown that the defendant Kuntze acted to stop such unlawful practices. It is quite evident that he acquiesced in their performance when his duty was to intervene to prevent their recurrence. We think his responsibility for these unlawful acts is amply established by the record.
There is some evidence in the record that portions of the population were being deported for labor service in Germany, Norway and other territories subjected to German influence. We are of the opinion that Kuntze's responsibility therefore, if such deportations were in fact carried out, has not been established beyond a reasonable doubt.
There is also some evidence concerning an improper use of the population in labor service in clearing mines and building military establishments. In this respect, the language of the reports is not definite and the testimony offered is not clear that such alleged acts were unlawful ones for which this defendant could be held responsible.
The defendant Kuntze denies that he was in any way responsible for the commission of unlawful acts by troops subordinate to him. While the record does not show that he ever ordered a ratio to be applied in the execution of reprisal measures, the record does show that he urged more severe measures and a direction that a ratio of 100 to 1 for each German killed and 50 to 1 for each German wounded be applied where the perpetrators could not be found. Reports made to him show that he was not without knowledge of the reprisals being taken and the ratios being applied.
His claim of a lack of knowledge of the crimes being committed cannot be sustained.
It is true, as shown by the record, that the acts complained of were ordered by his superiors. While this is not a defense, it is a matter for consideration in mitigation of punishment. He says, and it is not disputed, that he objected to the High Command because of the harshness of orders received. That he was not in high favor with Hitler and the Nazi party is borne out by the record. That he was continually pressed by his superiors to invoke more severe measures is clearly shown. He was plagued with the operations of organizations receiving their orders direct from Berlin in the same manner as was the defendant List. He was faced with a type of unlawful warfare that presented many difficult problems for solution by the commanding general. While many extenuating circumstances are shown by the record, his guilt in permitting the killing of innocent members of the population and the transportation of Jews to concentration camps is amply shown.
The defendant Kuntze, at the time of the commission of the acts charged, was a professional soldier with forty years experience. He knew or ought to have known that the killing of thousands of the population under the guise of carrying out reprisal measures when such reprisal measures were legitimate in no sense of the word, made thorn crimes no matter what name was applied to then.
COURT NO. V, CASE NO. VII.
The defendant says that order and security was the objective sought by him in the Southeast and that reprisal measures were taken for the purpose of deterring attacks upon German soldiers and the sabotaging of communication lines and military installations. But this is only a partial explanation. It appears from the record that the High Command was endeavoring to secure order and security in the southeast without adequate troops and equipment. It is evident that order and security was sought by applying intimidating measures against the population in lieu of adequate troop commitments. This led to the barbarous abuses of the law of hostages and reprisals which we have set forth. The contention that military expediency or necessity justifies the acts cannot be accepted as valid. There are certain acts otherwise unlawful which are proper when military necessity requires their doing, but the killing of greet numbers of the population in the manner here shown is not one of them. The collection of Jews and Gypsies in collection or concentration camps merely because they are such, is likewise criminal. The defendant says that he never heard of any such action against Jews or Gypsies in the Southeast. The reports in the record which were sent to him in his capacity as Wehrmacht Commander Southeast, charge him with knowledge of these acts. He cannot close his eyes to what is going on around him and claim immunity from punishment because he did not know that which he is obliged to know. We conclude therefore that the guilt of the defendant Kuntze is shown by the evidence beyond a reasonable doubt on Counts One, Three and Four.
The defendant Foertsch participated in the invasion of Yugoslavia and Greece as liaison officer with the XIIth Army for OKH.
On 9 May 1941 he was made Chief of Staff of the XIIth Army they commanded by Fieldmarshal List. With the appointment of Fieldmarshal List as Wehrmacht Commander Southeast, be became Chief of Staff to the Wehrmacht Commander Southeast and served in this position during the tenures of Fieldmarshal List and Lieutenant General Kuntze. In August 1942 he became Chief of Staff Army Group E then commended by Fieldmarshal von Weichs, a position he held until 4 March 1943 at which time his service in the Southeast came to an end. It will be observed that the whole period of his stay in the Southeast was in the capacity of Chief of Staff of the Army Group commanding the territory.
The Chief of Staff was in charge of the various departments of the staff and was the first advisor of the Commander-in-Chief. It was his duty to provide all basic information for decisions by the Commander-in-Chief and was responsible for the channelling of all reports and orders. He had no troop command authority. Neither did he have any control over the legal department which was directly subordinate to the Commander-in-Chief. As Chief of Staff he was authorized to sign orders on behalf of the Commander-in-chief when they did not contain any fundamental decision and which did not require the exercise of judgment by the subordinate to whom it was directed.
From the time Foertsch became Chief of Staff to the Wehrmacht Commander Southeast until late August, 1941, the population remained comparatively quiet. Signs of insurrection began to appear during the latter part of August which caused considerable concern. It was the opinion of Fieldmarshal List that additional troops were needed to cope with the situation.
His requests along this line were refused by the High Command. About 20 September 1941, Foertsch called upon Fieldmarshal Keitel, Chief of the High Command, and set forth the views of Fieldmarshal List concerning the situation in the Balkans. The views advanced by Foertsch were unequivocally rejected by that who asserted that List's responsibility was to obey which had been ordered. It appears therefore that the High Command had fixed upon a campaign of severity and intimidation as a substitute for an adequate number of troops. The contention had been advanced that with adequate troops, the shootings of hostages and reprisal prisoners would not have been necessary from any point of view. The defendant Foertsch asserts, however, that with adequate troops, reprisals against the population would still have been necessary. This view is based on the fact that reprisal measures are dependent upon the attitude of the population which, in any event, would have been incited to commit acts of sabotage and other senseless actions by certain hostile influences within and without the country. It is the opinion of this defendant that reprisal measures against the population were unavoidable under such circumstances.
On 5 September 1941, Fieldmarshal List's order on the Suppression of the Serbian Insurrection Movement, which was quoted in part in the portion of the opinion dealing with the defendant List, was issued. On 16 September 1941, the Keitel order fixing reprisal ratios of 50 to 100 to 1 was issued and distributed. Also on 13 September 1941, Lieutenant General Boehme was placed in charge of military operations in Serbia. During the occurrence of these events, the defendant Foertsch was on leave and became familiar with them upon his return in the latter cart of September 1941.
It is the testimony of Foertsch that the Keitel order of 16 September 1941, fixing reprisal ratios from 50 up to 100 to 1, was the basic order under which reprisal measures were carried out in the Southeast. The evidence shows the following reprisal measures which were executed prior to the Keitel order and on the reports of which the signature or initials of the defendant Foertsch appear: On 16 July 1941, for sabotage in Obrenovac, 10 communists shot to death. In Palanka communists were caught while putting up posters, one was shot and two arrested. On 25 July 1941, two attempts to destroy German motor vehicles with bottles filled with gasoline were reported in reprisal for which 100 Jews were to be shot. On 28 July 1941, 80 were shot to death in reprisal for an attack on a police patrol and 122 communists and Jews were shot in Belgrade for previously reported sabotage acts. On 1 August 1941, as reprisal for previously reported unrest near Petrovgrad, 90 communists were shot there. On 6 August 1941, 4 plotters and 90 communists and Jewish hostages were shot in Zagreb. On 7 August 1941, the shooing of an additional 87 communists and Jewish hostages was reported. Other similar reports appear in the record. These occurrences came to the attention of Foertsch as Chief of Staff before the High Command had issued any orders to the Wehrmacht Commander Southeast pertaining thereto. In other words, these killings took place before any basic order had been issued by any officer superior to Fieldmarshal List.
On 28 September 1941, Keitel's order on the Taking of Hostages was distributed. Parts of this order are quoted in the portion of the opinion dealing with the defendant List.
This order was passed on to subordinate commanders at the direction of his commanding general. The signature of Foertsch appears on the order in his capacity as Chief of Staff.
The evidence clearly shows that the reports of units subordinate to the Wehrmacht Commander Southeast invariably came to the attention of the defendant Foertsch if they had strategic or operational importance. It was only when he was on leave or absent on outside assignments that such reports did not come to his notice. For all practical purposes, he had the same information as the defendants List and Kuntze during their tenures as Wehrmacht Commanders Southeast. He knew of the incidents held to be crimes that are recited in the portions of the opinion dealing with the defendants List and Kuntze. He was informed of the killing of hostages and reprisal prisoners. He was familiar with the illegal orders of Hitler and Keitel prescribing reprisal ratios of 50 up to 100 to 1. He gained information through reports that such ratios were being applied against the innocent members of the population. He had information that concentration or collection camps were established. He gained information through reports that Jews were transported to concentration cames for no other reason than that they were Jews, although he did not know by whose order this was done. He knew of the burning down of villages as reprisal measures. It is not necessary that all these specific acts be recapitulated here. The defendant Foertsch did not participate in any of them. He gave no orders and had no power to do so had he so desired. He did distribute some of the orders of the OKW, the OKH and of his commanding generals.
These orders will be reviewed as to their content and legality.
The order of 16 September 1941, generally referred to as the Keitel order of that date, which directed the killing of 50 to 100 members of the population for each German soldier killed, was received by the Wehrmacht Commander Southeast at a time when the defendant Foertsch was on leave. On his return he became acquainted with the order but the evidence is clear that he had no connection with its issuance or distribution.
The defendant Foertsch admits that he distributed Fieldmarshal Keitel's order of 28 September 1941 wherein it is ordered that hostages of different political persuasions such as Nationalists, Democrats and Communists be kept available for reprisal purposes and shot in case of an attack. He contends that this order was a legal one and that his distribution of it invokes no criminal responsibility.
The order of General Boehme under date of 10 October 1941 providing for the killing of 100 prisoners or hostages for each German killed and 50 for each German wounded, was known to Foertsch through the reports made to the Wehrmacht Commander Southeast. That it was repeatedly applied was also evident to him from General Boehme's reports to List and Kuntze.
The defendant Foertsch admits that he distributed General Kuntze's order of 19 March 1942 wherein it was ordered that more severe reprisal measures be taken and directed that reprisals be taken in accordance with a definite ratio "for instance 1 German dead - 100 Serbs, 1 German wounded - 50 Serbs." It is the contention of Foertsch that this order which is more fully set forth in the portion of the opinion dealing with the defendant Kuntze, was advisory only because of the use of the words "for instance" and "might" in connection with the figure 100.
He contends that this order was consistant with his position that reprisals were lawful although he personally did not approve of the high ratios to be uniformly applied.
The Commando Order of 18 October 1942 was distributed by Army Group E commanded by General Alexander Loehr and of which Foertsch was then Chief of Staff. As to this order Foertsch states that he considered this order unlawful in that it called for the commission of offenses and crimes under international law but that he assumed that the issuance of the order was in answer to similar actions by the enemy in contravention of international law. It has not been shown that the defendant knew this order was in fact carried out in the territory in which he served.
The record further shows that in July 1943, the defendant distributed a Hitler order providing that partisans should no longer be killed but treated as prisoners of war and sent to the Reich for forced labor in mines. The defendant states that as such persons were subject to the death penalty, it was not unlawful to deport them for labor service. He closes his comments on this order with the statement that he had no power to rescind, modify or palliate this order in his capacity as Chief of Staff.
The prosecution contends that Foertsch as Chief of Staff of the various Army groups successively in command in the Southeast, was a powerful and influential figure. It is insisted that he exercised this power and influence upon his various commanders-in-chief in such a manner as to incriminate himself irrespective of the fact that he had no command responsibility. The charge that a conspiracy existed which had for its purpose the decimation and annihilation of various racial and religious groups finds support in the record but it fails utterly to establish that the defendant Foertsch, or any of the Wehrmacht officers jointly charged with him, ever became a party to any such preconceived plan.
We think the evidence shows that insofar as the defendant is concerned, the actions in the Southeast were motivated by a desire to attain peace and order among the civilian population, - a matter that was essential to an adequate program of defense against an allied invasion.
The nature of the position of the defendant Foertsch as Chief of Staff, his entire want of command authority in the field, his attempts to procure the rescission of certain unlawful orders and the mitigation of others, as well as the want of direct evidence placing responsibility upon him, leads us to conclude that the prosecution has failed to make a case against the defendant. No overt act from which a criminal intent could be inferred, has been established.
That he had knowledge of the doing of acts which we have herein held to be unlawful under international law cannot be doubted. It is not enough to say that he must have been a guilty participant. It must be shown by some responsible act that he was. Many of these acts were committed by organizations over which the Wehrmacht, with the exception of the commanding general, had no control at all. Many others were carried out through regular channels over his voiced objection or passive resistance. The evidence fails to show the commission of an unlawful act which was the result of any action, affirmative or passive, on the part of this defendant. His mere knowledge of the happening of unlawful acts does not meet the requirements of criminal law.
He must be one who orders, abets or takes a consenting part in the crime. We cannot say that the defendant met the foregoing requirements as to participation. We are required to say therefore that the evidence does not show beyond a reasonable doubt that the defendant Foertsch is guilty on any of the counts charged.
The defendant von Geitner became Chief of Staff to the Commanding General in Serbia (General Paul Bader) in 10 July 1942. He continued in this position until August 1943. He thereupon became chief of the general staff with the Military Commander Serbia and Military Commander Southeast (General Hans Felber), a newly established position. He continued in this position until October 1944. During the entire period of his service in the Balkans, the defendant von Geitner served only as chief of staff. His duties generally had to do with operations, supplies, training and organization of troops. In addition to this staff, there existed an administrative staff which dealt directly with matters pertaining to the administration of Serbia and a third staff headed by the Plenipotentiary for Economy. While the persons in charge of the latter two staffs were personally subordinate to the military commander, the first received orders direct from superiors in Berlin and the second received orders from the administrators of the Goering Four Year Plan.
In addition, there was a Higher SS and Police Leader in the territory who had charge of police units and the police security program. He, too, was subordinate to the military commander personally, but received his general orders from the Reich Fuehrer SS directly. The police troops were subordinate to the commanding general only when needed for tactical commitment. These devious command channels with their overlapping powers were a constant source of trouble to the commanding general. A complete understanding of the nature of the subordination of each to the Wehrmacht Commander is necessary to the fixing of the responsibility, if any, that may be charged to the officers of the Wehrmacht. The burden rests upon the prosecution to establish the responsibility of the defendant von Geitner in ordering, aiding, abetting or taking a consenting part in the crimes charged against him.
The general allegations against the defendant von Geitner follow the pattern of those charged against the defendant Foertsch and insofar as identical situations are concerned, the discussion will not be here repeated. There is one situation here involved that was not discussed at length in the case against the defendant Foertsch. The evidence shows that defendant von Geitner initialed or signed orders issued by his commanding general for the shooting of hostages and reprisal prisoners which were unlawful when viewed in the light of the applicable international law. We shall therefore determine the effect of such actions and the criminal responsibility that may grow out of it.
The evidence shows that General Bader reserved unto himself the authority to issue orders for the arrest of hostages and the execution of all reprisal measures. It appears that the commanding general handled these matters with the aid of a special officer who had been trained in the law. It was the duty of this officer to examine the particular problem with regard to the correctness of the description of events and submit his conclusion to the military commander who made the decision.
The defendant von Geitner was necessarily informed of the order made by virtue of his position. It became his duty to prepare the order and approve its form which he usually did by placing his signature or initials on it. This he contends is the extent of his participation in the issuing and distributing of reprisal orders.
The applications for reprisal actions were generally made by (1) the Administrative Sub-Area Headquarters, (2) by troop commanders, or (3) the Higher SS and Police Leader. They were then referred to the special legal officer who worked on them and submitted the result to the commander. The commander then made the decision and delivered it to the defendant von Geitner for preparation and approval as to form. The latter was generally indicated by his initials or signature. The order then was sent on its way through regular channels by von Geitner. No doubt exists that the order was that of the military commander and that the defendant von Geitner lacked the authority to issue such an order on his own initiative. He contends that he was opposed to the reprisal policy carried out in this area, a statement sustained by the record. He does not say that reprisal killings against the population were not necessary or that he considered it unlawful to carry out such measures under certain conditions. The question posed is whether the stated participation of the defendant von Geitner in his capacity as Chief of Staff is sufficient to establish criminal liability.
The evidence fails to show beyond a reasonable doubt that he aided, abetted or took a consenting part in acts which were crimes under international law. No responsible act is shown to have been committed by him from which a guilty intent can be inferred. The charge that a conspiracy existed which had for its purpose the decimation and annihilation of racial and religious groups is not established by sufficient evidence insofar as this defendant is concerned. The record does not show his participation in slave labor programs or concentration camp activities although he knew of them. His testimony that he opposed all such measures is not effectively disputed.