In drawing such comparisons, you will also gain the correct criteria as to the knowledge that Field Marshal List may be presumed to have had of all the events on the Balkan peninsula. As for all the reports and statements not directed to his command, he could not have had knowledge of them, and of the reports that were sent to his command he could only know such as were reported or submitted to him, because you cannot, prima facie assume that the Supreme Commander of a theater of war takes personal cognizance of all incoming reports. The corollary implied by these considerations is, I submit, that the burden of proof for an asserted knowledge rests on the prosecution. You can hold a Commander-in-Chief responsible for acts and actions occuring in such a vast area only inasmuch as and insofar as he either ordered their commission or conived at them.
Only by applying these principles, will you arrive at a conclusion that will do justice to the position held by Field Marshal List at the time.
1.
Court I of the Indictment charges Field Marshal List with participation in war crimes and crimes against humanity, which are alleged to have consisted in the murder of large parts of the civilian population in the Balkan peninsula, a plan for terrorizing them, executions of hostages and alleged executions of a 100 Serbs and 20 Communists.
Against these charges I state:
a) Field Marshal List never issued orders for the killing of parts of the civilian population or of individuals. Inasfar as civilians were killed, it was a matter of executing rebels. Although they could have been summarily dealt with, as Prof. Taylor explicitly remarks, the German Wehrmacht had orders that they were only to be executed after they had been found guilty by a court martial or summary court martial. I have supplied ample evidence on this point.
Field Marshal List could act on this basis.
b) No plan existed to terrorize or deter the population. The terror order of 23 July was no applicable to the Balkans; it was valid only for the east, as its contents show very clearly.
c) The shooting of hostages was not based on orders by Field Marshal List, but instead on the OKW order of 16 September and the order by General Boehme of 10 October 1941. I have previously stated that the OKW order is a direct order to subordinate agencies which Field Marshal List did not pass on, since it was sent through direct channels, but which he did mitigate within the scope of his possibilities, whereas he was no longer in a position to learn of Boehme's order.
d) The alleged shooting of 100 Serbs was in actual fact never carried out, the announcement was made merely as a deterrent. (This concerns Par. 5a. No evidence has been submitted for the alleged carrying out of the shootings. Apart from this, the 2nd Army was not under the command of Field Marshal List.
e) I have previously commented on the case of Rtany.
This case was never known to Field Marshal List.
f) The ten-day report (par. 5c) covering the period from 20 - 30 October 1941 could not longer reach Field Marshal List's knowledge due to his leaving prior to that date.1) The balance of the statements contained in Count 1 of the Indictment do not concern Field Marshal List in view of the time factor involved.
2.
According to Count II of the Indictment, Field Marshal List is to have participated in the war crimes of plundering and looting, the despoiling and retarding of the economic and industrial potential, and in the destruction of towns and villages, particularly in the plains of Drina, in the bend of the Sava river, and in the Valjevo district.
By way of contradiction I maintain:
a) The Prosecution has not submitted adequate evidence for the existence of the alleged crimes of plunder, looting, and weakening of the economic potentional. The Rosenberg detachment, which was active in the Balkans, did not have the task of plundering and looting, but merely to secure documents and material which was damaging to the State, as the prosecution documents show. The Wehrmacht could not possibly have been interested in weakening the economic potential, but on the contrary, merely in strengthening it.
b) In his order of 5 September 19413), Field Marshal List merely indicated the possibility of burning down villages which had participated in certain actions. I have previously shown that this act was one admissable under international law. In no case has the prosecution offered evidence for the wanton destruction of villages, which alone is punishable according to Control Counsel Law No. 10.
c) In no case did Field Marshal List order or consent to punitive expeditions.
3.
In Count III of the Indictment Field Marshal List is charged with having passed on the order of the 2 Army of 28 April 1941, the commissar order, the terror order, as well as with having had a consenting part in the alleged shooting of 2100 Jugoslav Prisoners of war (par 12d), in the order of General Boehme not to grant a pardon (par 12e), and in the arrest of relatives of members of the Jugoslav National Army.
In view of these charges I contend:
a) Field Marshal List can not be charged with the order of the 2 Army of 28 April 1941, since this Army was not under his Command.
b) Field Marshal List at no time received or passed on the Commissar order; the prosecution has not produced any evidence to substantiate this charge.
c) The terror order was not sent to the Balkan Theater of war; it applied to the East only; this fact becomes apparent from the contents of the order.
d) 449 arrestees, not 2100 Jugoslav prisoners of war, were shot by way of reprisal as a consequence of the Topola incident. The partisans were those who shot German prisoners and wounded near Topola. The reprisal measures were based on an express order of the OKW, of which Field Marshal List might have possibly learned. The prosecution has not proved, however, that he did. Field Marshal List does not recall it, and there are not indications concerning this order in his daily notes.
e) The prosecution has not submitted an order by General Boehme to the effect that members of the National Jugoslav Army were not to be pardoned; therefore, this order has not been proved to exist. The order of General Boehme concerning negotiations with the insurgents dated 8 October 1941 only mentions insurgents and franctireurs. It was not sent to the Armed Forces Commander Southeast. Therefore, Field Marshal List would only have been in a position to observe the effects of this order from reports which were available to him.
Those consequences, however, could not be ascertained from an order of 8 October 1941 until 15 October 1941 - the day when Field Marshal List left the service, so that this order can not be charged against Field Marshal List.
f) Field Marshal List could also not have had knowledge of the order by General Boehme of 14 October to arrest relatives of the partisans the prosecution calls them: members of the Jugoslav Army of Liberation. This order was not sent to the Armed Forces Commander Southeast for information purposes. But even if this would have been the case, Field Marshal List could not have gained knowledge because of his leaving the service.
4.
According to Count IV of the Indictment Field Marshal List is said to have participated in war crimes consisting of: internment of inhabitants in concentration camps, in particular the male inhabitants of Sabac and the entire population of the districts south of Mitrovica and Ravnje in the concentration camp Zasaviza, the shooting to death of 2200 Jews in the concentration camp Belgrade, and in compulsory labor employment. Against this I maintain:
a) The internment of members of the population regarded as suspects is admissable under international law -- and this is also general practice. If documents of that time mention concentration camps, then this refers to collecting or internment camps by the troops in the sense of the internment camps which even nowadays exist. The remark by Field Marshal List in his order of 5 September refers only to such collecting camps. The concentration camps in the notorious sense did not yet exist at that time. By a letter dated 22 June 1941 the Serbian Minister of the Interior was directed by Turner to set up a so-called concentration camp. The establishment of this first camp, therefore, was ordered at a time when Serbia did not yet belong to the area of command of Field Marshal List.
b) The Plenipotentiary Commanding General in Serbia, Boehme, ordered on 23 September, on the occasion of the evacuation of Sabac, the establishment of a concentration camp into which the arrestees from the prisoner collecting camps were to be transferred.
This order went by teletype to the 342nd Division which was in charge of the evacuation of Sabac, but only for information purposes; that is by letter to the Armed Forces Commander Southeast. The evacuation was scheduled by an order dated 23 September suddenly for 24 September; any interference by the Armed Forces Commander Southeast, therefore, was impossible because the evacuation had already been completed before the Armed Forces Commander even heard about this incident. However, he intervened with an order of 4 October which directed a far reaching mitigation. By his order the arrested persons were released after their interrogation.
c) With the order of 22 September the Plenipotentiary Commanding General in Serbia, Boehme, ordered the mopping-up of the Save bend and the transfer of the arrested persons to prisoner collecting points and later to concentration camps. The further order by General Boehme for the evacuation of the Save bend dated 25 September which ordered the forcing of the population to the south into the Cer mountains, was submitted to the Armed Forces Commander Southeast for information. That was the first thing Field Marshal List learned of the intended evacuation of the Save bend. He immediately intervened against forcing of the population into the Cer mountains.
The camp Jarak, too, originated from an order by the Plenipotentiary Commanding General in Serbia. This order never reached the Armed Forces Commander Southeast and so he could not have had any knowledge of this matter. The camp was turned over to the police by order of 27 September.
d) The camp Zasaviza was to be set up according to an order by General Boehme. From par. 2 of this order it becomes quite clear that this was not to be a concentration camp but a camp which was to be made adjacent to the locality of Zasaviza. As to the report by the Chief of the Security Police and the SD of 9 October, this again concerns this very camp, which, according to the report, was to be considerably extended. The establishment of the camp, however, did not take place because its rebuilding was stopped by an order dated 28 October of the Commanding General in Serbia in view of the fact that the terrain was swampy.
e) The alleged shooting to death of 2200 Jews in the Belgrade concentration camp was not carried out. This incident is identical with the retaliation measures caused by the attack near Topola, which were not based on an order by Field Marshal List and which had been carried out before he could have gained knowledge about them.
f) Field Marshal List did not issue any orders for compulsory labor employment; neither did the Prosecution furnish any proof in this respect.
With that, I have discussed all the Counts in the Indictment under which Field Marshal List has been charged, on the basis of the evidence. May it please the Tribunal!
This exposition has shown that the charges of the prosecution against Field Marshal List lack all foundation; how senseless however, these accusations really are becomes particularly clear after a brief consideration of his personality.
As early as the first World War Field Marshal List held various positions in the General Staff owing to his abilities in military matters and by virtue of his human qualities. During the time of the Weimar Republic, his superior knowledge enabled him to continue with his military career. After serving with the troops and with various staffs Lieutenant Colonel List, as he was then, was appointed to the Ministry of Defense where he was put in charge of the Department for Army Training. In 1930, Grosner, who was then Defense Minister, appointed him commander of the one and only Infantry School, at Dresden, that is, to a position which was entrusted only to men of particularly strong character and of superior personality. In that connection, he was given the special job of counteracting the spread of National Socialist idealogy among the young ensigns.
When Hitler took over the government in 1933, Field Marshal List, setting aside all misgivings, decided not to leave his responsible post as Commander of the Infantry School in order to be able, in this important position, to exert his influence against all National Socialists political excesses and attempts to overstep authority.
It was not personal ambition of National Socialist leanings which prompted Field Marshal List in his further actions; rather it was the consciousness that in this way he could best serve his Fatherland.
That his attitude towards National Socialism did not change was shown clearly in July 1934. After the Boehm putsch, Field Marshal List sharply objected to the excesses of the SS. Although at that time the anticlerical tendencies of the party became more and more apparent. Field Marshal List true to his conviction openly declared himself then and later a devout Christian and convinced follower of the church. In spite of the difficulties already existing at that time, he also tried to organize spiritual care within the Army and until his resignation he tried to promote it in every possible manner.
Neither officially nor in his social life did he allow himself to be influenced in any manner in his attitude towards the Jewish problem. When, in November 1938, excesses were committed against the Jews, Field Marshal List, in his capacity as Commander of Army Group Headquarters V in Vienna immediately raised sharp objections with the political authorities there and made the dissenting attitude of the Armed Forces abundantly clear.
Also during the Polish campaign he took drastic steps whenever incidents became known to him in which the police and the political agencies had committed excesses. Every time that members of the Armed Forces committed offenses against Jews or other inhabitants of the occupied areas in Poland and France, Field Marshal List punished the guilty men, thus showing where he stood.
A highly developed sense of justice and great awareness of duty caused him in such cases to protect the population rather than to shield his own soldiers. Thus it can be explained that nothing Field Marshal List did while he was active in Poland and France has been raised against him.
It was owing to the humane principles of Field Marshal List that the campaign against Jugoslavia and Greece was carried on in a chivalrous manner and that nothing was destroyed unless absolutely necessary.
Could any Army commander have acted in a more magnanimous manner than Field Marshal List who is a special Army Order particularly mentioned the bravery of his enemies and dismissed all prisoners of war immediately after the cessation of hostilities? Field Marshal List also did everything in his power for the civilian population of Greece in order to find a solution for the food problem and to give assistance in every other respect.
All these examples show unequivocably that some of the most prominent characteristics of Field Marshal List were the way in which he cared for people, his benevolence, and kindness of heart, coupled with a sense of responsibility.
In view of all this evidence, does it not appear positively absurd that a man like Field Marshal List should have pursued a plan to terrorize and decimate the population of the Balkans? How could one explain such a sudden change in his entire attitude and ideology?
I believe that this exposition will be sufficient to show what to think of the allegations of the prosecution. Not Field Marshal List and not the German troops were responsible for the drastic measures but the politically incited partisans which started fighting the occupation power in the most insidious manner. All measures against them therefore bear the stamp of unavoidable military necessity.
May it please the Tribunal I now come to the final evaluation of the case:
Through the development of the situation in the Balkans after the beginning of the Russian campaign, Field Marshal List was faced with a number of legal questions, scarcely any of which could be given an unequivocal answer. Here, the sins of the past became evident, in that no clear and exhaustive legal rules were created for martial occupation. The League of Nations is just as responsible for this sin of neglect as was the Hague Peace Conference before it. It should have been one of the most urgent tasks of the associations of international law to create clarity in this important sphere of law, but it was neglected, as were so many other things. Nothing shows more clearly the incomplete and defective regulation of this matter than the situation concerning international law which has developed since the end of the second world war on the territory of the former German Reich! Because how would it be possible for each of the occupation powers to administrate its zone on different principles, if the law of martial occupation were governed by clear, positive principles?
Events since 1945 have brought home to every intelligent man in the world the truth of the fact that scarcely one single sphere of international law is so defective as this one. Those men from the great Western nations with a sense of responsibility have drawn therefrom the only possible conclusion, namely that to remedy this condition an occupation statute must be created. It is in the nature of things for the corresponding conclusions also to be drawn from the case in question, and for it to be recognized that Field Marshal List, as all the other German commanders assigned to a German occupied country was faced with a sphere of law full of deficiencies and obscurities.
If in Your Honors' view Field Marshal List surpassed the measure of that which, in retrospect with exact knowledge of the circumstances on both sides, could be designated as justified and tolerable, then you must allow that on the basis of the state of affairs and considering the vagueness of the legal position, Field Marshal List could feel himself justified in ordering the measures he did!
(The next sentence isn't translated.)
The Tribunal can not pass over these inherent facts in view of the basic principles governing the field of criminal law for all civilized nations for centuries.
Reasons of fairness and justice demand that Field Marshal List be treated in this respect exactly as were, for instance, those Allied commanders who gave the orders to attack Dresden and Hiroshima. Both attacks were operations started when the Allies had already clearly won the war, and the officers participating in both operations could have no doubt whatsoever that they would bring a terrible death to tens, nay, hundreds of thousands of innocent civilians. But in spite of this, these orders were given - and carried out!
May it please the Tribunal!
I do not believe there is one man in the world today with powers of judgment and a love of truth who would dare to think that the large scale attacks on Dresen and Hiroshima with their hundreds of thousands of dead can be objectively justified. If, in spite of this, the question has not yet been brought up about the criminal responsibility of the Allied commanders concerned, then obviously this is only because they were credited with having acted in good faith, and it is assumed they considered that such an action was militarily necessary.
But the right conceded to the Allied commanders in such cases, must certainly be granted Field Marshal List in the cases charged against him which involved far fewer losses!
May it please the Tribunal - I must deal with one further point. If the Tribunal passes sentence in cases such as that of Field Marshal List, then Your Honors will create a juridical precedent which may have incalculable consequences. Because in the future no commanders will ever dare to issue an order with any bearing on international law without first obtaining a legal opinion on it. In legally complicated and doubtful cases he will probably never struggle through to a decision. Your Honors would thereby hit the core and the striking power of Your Honors' own army. In practice this means that in the future the course of military events would be determined not by soldiers, but by lawyers!
May it please the Tribunal!
The consequence of this would be that an enemy with no scruples concerning international law would be given colossal opportunities, and he will not hesitate to make every possible use of them.
PRESIDING JUDGE CARTER: The Tribunal is about to recess but we want to advise defense counsel that in these arguments that are to be made from now on, while each one is allowed a stipulated time, he is not obliged to use it and the one who is to follow is expected to be ready to make his argument at the conclusion of the one that precedes him. We don't want to have any delays in between the making of these arguments.
However, in view of the lateness of the hour we will recess until tomorrow morning at nine o'clock. We will start the arguments at 9:00 a.m. instead of the usual nine-thirty.
(The Tribunal adjourned until 0900 hours, 5 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 5 February 1948, 0900-1630, Justice WENNERSTRUM 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 if all defendants are present in the courtroom.
THE MARSHAL: May it please your Honors all defendants are present in the courtroom.
MR. FENSTERMACHER: If your Honor, please, yesterday during Dr. Laternser's closing argument he mentioned on page 20 of his final plea in discussing the Yamashita case that the whole opinion was only partial available to him. I don't know whether he asked for it at the library and was unsuccessful in getting the entire opinion, but I would like the record to show I am handing at this time to Dr. Laternser an extended full copy of the Yamashita Opinion.
DR. MENZEL: (for defendant Kuntze) If your Honor, please, I would like to begin the final plea for General Kuntze. I presume the Tribunal has an English translation of this, and I would like to state first of all, that firstly I have been as brief as possible in the treatment of the general problems which my colleague Dr. Laternser has already dealt with very much in detail, and with very much emphasis.
Mr. Fenstermacher has often stressed very much that what is correct should not be presented more than once. Further, I will not submit a number of things in order to save time, and I would like to act on the assumption that the Tribunal will regard favorable in its judgment what is set down in the final plea, even though it isn't read.
As Defense Counsel of General of the Engineers Waler KUNTZE, I beg to be permitted to give a short summary of the following facts:
I skip the first page.
Renouncing therefore the representation of the entire material of this case, I deliberately restricted myself to calling to the attention of the Court such points as have special significance in my opinion for the adjudication of the defendant KUNTZE under the charges which have been brought against him.
Then I skip the next paragraph "Competence of the Court". This paragraph only contains an observation towards the competence the Court which has already been dealt with by my colleague, Dr. Laternser. The next paragraph bears the heading, General KUNTZE's tasks in the South East "When weighing the facts on which the charge against General KUNTZE is based, we have to start from the following basic considerations:
1. According to the orders which General KUNTZE received from HITLER, KEITEL and von BRAUCHITSCH before taking over the office of deputising for the sick Wehrmacht Commander South-East and Commanderin-Chief of the 12th Army, Field Marshal LIST, his main task in the South-East was of a tactical and strategical nature. It consisted in the preparation of the defense of the South-East which was a prerequisite for the repulsion of an invasion by the Allied Forces (statement KUNTZE, transcript p. 3476-3478 German, 3533-3535 English). The solution of this task was of decisive importance in the war of the Axis powers. Not only the German operations in the USSR, in particular the protection of the deep flank of the German East-front, but also the success of the German-Italian operations in Africa and the accomplishment of the German war in the air in the Eastern Mediterranean completely depended on the successful defense of the Balkans against an invasion by the Allies.
The presupposition for the solution of this task was the restoration of quiet and order in Serbia by the German occupation forces, moreover their maintenance and the protection of the main railway lines and of the most important industrial plants in the rest of the German occupied South-Eastern territories, in particular in Eastern Croatia in cooperation with the Croatian forces and with the Italian AOK 2, which was assigned in West Croatia, mainly for coastal defense, and, in Greece, with the Italian AOK 11 which had occupied the main parts of the country.
For the purpose of carrying out his task, the following units were subordinated to the Wehrmacht Commander South-East:
a) the Acting Commanding General in Serbia with jurisdiction over Serbia and the German tasks in Eastern Croatia.
b) The Commander of Saloniki and the Aegean Sea with jurisdiction over the Greek province of Macedonia and the Islands in the Northern Aegean Sea.
c) The Commander in Southern-Greece, under whose command was also the Commander of Crete, with jurisdiction over the port-district of the Piraeus, the districts of Attica where German troops were stationed, and the Islands of Milos and Crete, in particular with respect to the operation of supply by water in cooperation with the Admiral of the Aegean Sea, who was subordinated to the Wehrmacht Commander South-East.
Executive powers in their respective districts had been conferred on these commanders for the accomplishment of their tasks. The Military Administrations were under their command.
On the other hand, the following were not under the command of the Wehrmacht Commander South-East:
The entire Air Force and the Naval Forces as far as seawarfare was concerned.
All Italian forces in the South-Eastern territory, except for the Sienna Division which was subordinated to the Commander of Crete only tactically, and the Croatian Wehrmacht were independent.
Apart from these limitations in the purely military fields, the position of the Wehrmacht Commander South-East and of the subordinated commanders was also restricted by the fact that the German Envoy to Greece in Athens had been appointed Reich Plenipotentiary for all political, economic and cultural matters of the German occupied area, and that, in Serbia, the Plenipotentiary West was responsible for the economic field, the Representative of the Foreign Office for political matters, and, from late January 1942 onwards, the Higher SS and Police Leader for matters which regarded the Police Force. Furthermore, there were direct channels of command and reports between the Reich Offices and the Military Administration in Serbia in all questions of administration and, from January 1942, between the Reich Fuehrer SS and Chief of the German Police and the Higher SS and Police Leader in all matters which related to the police. The Higher SS and Police Leader was only personally subordinated to the Acting Commanding General in Serbia, and, therefore, not to the Wehrmacht Commander South-East.
The basic tasks of the Wehrmacht Commander South-East were therefore centered in the preparation of the defense of the German occupied area, against operations of the Allies. I omit the next sentence.
2. Within the framework of the operational tasks, the tasks which accrued to the Wehrmacht Commander South-East from the occupation of the South-East were of a more secondary nature. In consideration of the widely diverging situations in Greece and Serbia, such tasks had been transferred to the territorial commanders. A limitation of such territorial powers of the commanders, in particular the total or partial assumption of such powers by the Wehrmacht Commander South-East himself, had been neither provided for nor ordered in the directives which General KUNTZE received from HITLER and KEITEL before taking over, and according to the orders of the OKW already issued.
Political tasks.
3. No political tasks were connected with the order for General KUNTZE to act as the deputy for the Wehrmacht Commander South-East. In particular, no orders had been given to General KUNTZE which aimed at the decimation of the population and at the destruction of the economy. On the contrary, on the witness stand, General KUNTZE testified to the fact that the Chief of the OKW expressly stressed the necessity for the pacification of the population and for the re-operation of the economy as being also in the German interests.
4. General KUNTZE was appointed to his office only for the duration of the illness of Field Marshal LIST, i. e. for 4 - 6 weeks. This time limitation was of course bound to have certain effects on his official activity too. First of all, this consisted, above all during the first period of his term in office, in adhering to the orders which he found in force when he took over, and secondly in the prevailing situation in whose development he had no part. His later activities were also made more difficult by the fact that his assignment of Acting Deputy for the Wehrmacht Commander South-East was never officially extended and that he, therefore, had to reckon daily with his being recalled, as General KUNTZE himself testified in the witness stand.
5. Every country in the South-East has its racial and economic characteristics which are basically different from those of the neighboring states. Moreover, when General KUNTZE took over, the internal situations in all countries where German troops were stationed, were widely diverging from each other.
General KUNTZE had never been in the Balkans, either during the First World War or prior to his assignment. Therefore, the conditions in the Balkans were completely strange to him.
I skip the rest of the paragraph to the last sentence. For these reasons, General KUNTZE, during the first period of his term in office, had to accept the conditions which he found when taking over.
Duration of the official activity of General KUNTZE According to the sworn statements of the defendants KUNTZE, and according to the Exh.
584 XXV 59, 74, General KUNTZE arrived in Athens in the afternoon of 26 October 1941. As General KUNTZE testified in the witness stand (Record p. 3494 German 3551 English) he formally took over on 27 October, which fact also emerges from the report of the Wehrmacht Commander. Then I skip the next paragraph and continue at the bottom:
According to the presentation of the Prosecution, the date of the termination of General KUNTZE's term in office was the 8 August 1942. The next paragraph:
Extent and limitation of the responsibility of General KUNTZE The following basic facts emerge from the duration of General KUNTZE's term in office:
All incidents which occurred during the time which preceded his term in office, cannot constitute any guilt on the part of the defendant KUNTZE. Among these are in the first line, such orders as had been issued, handed on and carried out during that time, and furthermore, such measures as were carried out after his taking over, but were based on orders issued prior to his taking over, as far as he had no knowledge of them. General KUNTZE can never be had responsible for incidents on which he could not exert any influence.
In addition, all incidents which happened after the 8 August 1942 must likewise be left out of the consideration of the facts. For, as a matter of course, the termination of his office was also the termination of his responsibility.
Therefore, only such incidents can constitute any guilt on the part of the defendant KUNTZE as came to pass during his term in office and were based on orders which he had issued on his own initiative, and moreover, such as had come to his knowledge.
Nor can he be charged with measures which did not reach his knowledge. But this knowledge can be assumed only in regard to those orders and reports by subordinate agencies which were reported to Military Commander South-East and were also received there. Accordingly, all those orders and reports by subordinate agencies and troops must be eliminated whose distribution rosters do not bear the name of Military Commander SouthEast as received; but this includes, about all, all activity reports and war diaries of the subordinate agencies and troops since these, according to regulations, were not to be submitted to Military Commander South-East and therefore could not be expected to reach the knowledge of Military Commander South-East.
The compilation, (Exhibit KUNTZE 65 III, 38 - 43) to which reference is being made, shows which particular documents are concerned.
But also in the case of reports and orders which, according to the distribution roster, were destined for Military Commander South-East, any knowledge on the part of the defendant KUNTZE can be considered established only if, apart from the receiving stamp of Military Commander South-East proving their actual receipt, they were initialed by the defendant KUNTZE to prove that he had taken notice of them in person. Considering the vast amount of papers that arrived at the headquarters of Military Commander South-East daily, the defendant KUNTZE could take personal note only of the most important reports. The major part of the reports, however, could be reported to him only in condensed form, confined to the essentials, giving priority always to reports on the tactical situation supplying the basis for the decisions of the Commander-inChief.