In the case of reports by Military Commander South-East to the OKW or OKH also, details of the reports by the subordinate commanders upon which the above reports were based did not roach the knowledge of the Commander-in-Chief. These reports to the OKW or OKH were only reported orally in a summarized form, mostly on the occasion of the situation conference which took place each evening.
Added to this was the fact that General KUNTZE, also because of his frequent absence on duty from Army Headquarters, could not know anything or only get a general view of a large part of the reports. Therefore, those reports which arrived at Military Commander South-East during the periods of absence as may be seen from Exhibit KUNTZE 64 III, 36/37, must be omitted from the evidence against the defendant KUNTZE to the extent as the defendant KUNTZE's initials on these reports do not show that they were brought to his knowledge alter his return to Army Headquarters. Accordingly, no responsibility whatever on the part of the defendant KUNTZE is involved in regard to the following documents put to his charge:
Situation at the Time of Taking Over Before entering into the particulars permit me to give a concise picture of the situation as found by General KUNTZE at the time of his taking office and to emphasize the legal basis ensuring from this situation for the defendant KUNTZE, as well as to set forth in the sequel the conclusions to be drawn from the development of the situation during the defendant KUNTZE's term of office.
Then I skip paragraphs 1 and 2, and would like to direct the attention of these paragraphs to the Tribunal.
Effective Occupation and Illegality of the Band Activity during General KUNTZE's Term of Office Therefore, in my further exposition I can restrict myself to prove
1) that also during the defendant KUNTZE'S term of office the occupation of the South-East was an effective one and that the band activity therefore amounted to a violation of the obligations incumbent upon the population of an occupied country toward the occupation power;
2) that also during the command of the defendant KUNTZE the rebellion did not fulfill the conditions of Article 1 of the Hague Convention concerning Land Warfare.
An effective occupation does not require the existence of so strong an occupation force as to insure the continued garrisoning of every village and every corner of an occupied country. On the contrary, it suffices that the occupation power is in a position actually to control with the forces available the country which has been taken into possession de facto. Then I skip the next paragraph.
The development of the situation during the defendant KUNTZE's term of office shows that with these forces the German occupation power was well in a position to guarantee peace and order in the territory it occupied, the self-evident presupposition being that the population paid attention to its obligations toward the occupation power. Permit me to refer to the following Defense documents.
I then refer to a number of Defense documents which are contained on page 15, and finally to the Wisshaupt Document.
From these documents follows unequivocally that during General KUNTZE's term of office
1) peace and order were being kept in Greece;
2) the situation in Serbia had calmed down considerably since the end of 1941;
3) no large-scale disturbances developed in Serbia any more; above all, the rebellion expected in the Spring of 1942 failed to materialize;
4) in the year 1942 in Eastern Croatia all centers of unrest were attacked and smashed.
And then I omit the next paragraph on page 16 and page 17 until the middle of the page.
In Croatia, on the other hand, the suppression of disturbances was an internal affair of the Croatian Government. Disturbances increased in the summer of 1942, because of the passive attitude of the Italians but were successfully fought in Eastern and Western Bosnia by the German and Croatian forces.
I do not need to mention Greece in particular, since during the whole time of office of the defendant KUNTZE no rebellion took place. Thus it is clearly proved, that the resistance movement in Serbia constituted, even during the time of office of the defendant KUNTZE, a flagrant violation of the obligations, which the population of an actually occupied country has towards the occupation power.
These resistance movements during the time of office of General KUNTZE were not a nationwide movement or a rising of the population, as understood by the rules of the HLKO (the Hague Convention concerning land warfare). The resistance movements in Yugoslav territory lacked, as in the beginning, so during the time of office of the defendant KUNTZE, the main requisite of a uniform movement namely, the centralized leadership.
Then I omit the further details about this and continue on page 19 in the middle.
But the fact, that small groups of bandits are led by some subordinate commander is not sufficient to maintain that Number 1 of article 1 of the HLKO (Hague Convention for land warfare) applies in this case.
The Prosecution has not been able to prove in its Trial brief to point II page 43, that the rebellious bands have been uniformly and firmly organized during the years 1941 and 1942.
The evidence-material Exh. 164 VII 1, 1 (Order of the Plenipotentiary General in Serbia for the fight against the resistance movements in Croatia, dated 3 January 1942), which is submitted therein, is countered by the facts, which were established after the end of the fight, that 1. the DANGIC-Chetniks, as enemies of the Communists, in general had not fought against the Germans 2. that the Communists were only 5000 men, the DANGICChetniks approximately 1000 men strong.
Then come the exhibit numbers. I omit the next sentence.
The record of the OKH dated 9 February 1943, concerning the D. MIHAILOVIC-movement -- quoted in the trial brief, page 46 -- is a mere product of fancy as testified by the witness WOLLNY. It is obvious, that the 115 Brigades of 3 companies each could not possibly number 150,000 men, but at the most 50,000 men.
The bands were neither uniformly dressed during the time of office of the defendant KUNTZE, nor did they wear any insignia, which could be recognized from afar. They wore mostly civilian clothes, i. e. peasant dress, and only partly pieces of uniforms, that is, German, Italian or Croatian, which they had stolen, as is evident from numerous documents, from killed or captured soldiers.
The assertions to the contrary contained in the trial brief of the prosecution, point II, page 46, are incorrect, as can be seen from the documents mentioned themselves.
Then skip the next three paragraphs and begin at bottom of page 21.
Uniform emblems, recognizable at a distance, as prescribed for members of a regular fighting army who do not possess a uniform, were also missing. Neither the Soviet star of the Communists nor the Yugoslav coat of arms of the Chetniks, which were worn on the cap, were badges recognizable at a distance, within the meaning of the "Laws and Customs of War on Land", Hague Convention. They were recognizable at 4 - 5 meters' distance at the most, and, in the same way as the cartridge belts of the Chetniks, which are considered "emblems" by the prosecution, could be taken off at any time, so that the rebels who were dressed in civilian clothes could quickly transform themselves into "peaceful peasants" as was customary in cases of ambushes, clashes and acts of sabotage. This lack of identification has no connection with the camouflage which was described as customary by the prosecution. Camouflage means the adaptation of uniform and equipment to the type of country-side. However, a soldier in uniform cannot quickly transform himself into a "peaceful citizen or peasant" by means of taking off his camouflage, as the rebels could do.
Furthermore, the rebels fought only from abmust and in most cases avoided an open battle.
They therefore did not carry their arms openly but hid them after use in order to then appear as "peaceful peasants". This eternal transformation from "fighters" to "peaceful citizens", and above all the nonexistance of clear front lines in this "partisan combat", while front lines are the rule in the case of combat between regular armies, contributed greatly to making the occupation army's combatting of disturbances more difficult.
This naturally had to lead to "cleaning-up operations" which the prosecution is trying to present as "reprisals". In doing so, however, the prosecution is entirely overlooking the fact that the rebels themselves as a result of their actions, bore the responsibility for the large number of searchings of villages in so far as they went into hiding in these villages as soon as they were attacked and frequently forced the population by means of arms to give them refuge and support.
I omit the next paragraph.
Above all however, the actions of the rebels did not correspond in any way to the laws and customs of war. The manner of their treatment of German soldiers captured by them almost invariably violated International Law and the laws of humanity. Captured and wounded German soldiers were murdered by them and were also frequently tortured to death by bestial methods as shown by the evidence.
Then follows the list of documents concerned. I skip the next paragraph and continue in the middle of page 24.
Nor did the rebels spare their own population. They murdered, plundered, robbed and frequently used arms in order to force the population to tolerate and support their insidious type of warfare. As the evidence has shown, acts of violence of all sorts were everyday occurrences, even deportations, forced recruiting, raids on communities, robbing of community records, money and food, destruction of the harvest, damaging the economy as well as sabotaging the industrial transportation and communication installations.
Retaliation Measures In accordance with the "Laws and Customs of War on Land", Hague Convention, the German occupation power was obliged to do away with this insecurity caused by the rebel bands.
The occupying power acted therefore not only in its own interest, when after a whole series of warnings, vigorous measures were adopted against the bands and those sections of the population which supported them, but rather in fulfillment of an obligation in accordance with International Law.
The fact that reprisal measures are permissible under International Law, especially the killing of human beings in the course of the reprisals, has already been submitted in detail in reply to the prosecution's brief on the law as well as in the opening statement and the plea of my colleague, Herr Dr. LATERNSER. With reference to these statements I can confine myself to proving that these conditions under which reprisal measures may be adopted in accordance with International Law were adhered to during the defendant KUNTZE's time of office.
Before going into details of the ordering and execution of reprisals I should like to state the following on principle:
1. The employment of reprisal measures had nothing to do with the strength of the occupying power. And I omit the paragraph and continue with "2".
2. The employment of reprisal measures depended solely upon the conduct of the population itself, as illegal actions to such an extent could not have been carried out without their cooperation, be it by tolerating or by supporting them.
3. Reprisal measures were to be inflicted only if it was not possible to seize the perpetrator or the perpetrators personally. In this case it was a military necessity to make those parts of the population responsible, which in spite of previous warnings and in spite of the publication of reprisal measures employed, participated in rebel movements or maintained relations with the perpetrators.
4. Reprisal measures have neither been initiated nor executed by the defendant KUNTZE; for the infliction of reprisal measures was a discharge of the executive power. Charged therewith were the commanders of the territories, that is: In Servia the General Plenipotentiary of Serbia, in Greece the Commanders of Southern Greece and Saloniki -- Aegaeis and on Crete the Commander of Crete, whereas in the independent state of Croatia the Croatian Government was charged with it. Consequently it was the duty of the Commanders of the territories and of the Croatian Government to order and execute reprisal measures. They had to make use of this authority on their own responsibility.
And I skip the rest of this paragraph and the next paragraph and continue with Figure 5 on page 28.
The execution of reprisal measures was not introduced by the defendant KUNTZE during the time while he was in office, but was ordered already before he entered office. Consequently, this was a fact which the defendant KUNTZE had to accept, all the more as its military necessity was proven.
While defendant KUNTZE was in office, reprisal measures were not carried out by the subordinate commanders according to an inflexible system, but were handled in each case according to the actual nature of the case. In addition, those measures were always the answer to illegal conduct of the other party, they never preceded them as claimed by the Prosecution.
The execution of reprisal measures had been ordered by the OKW. These OKW orders were orders of HITLER. There was no reason why the defendant KUNTZE should have doubts concerning the legality of these orders. For he had to assume that the Fuehrer decrees issued within the framework of international law had first been scrutinized as to their legality in the basic aspects because of their importance. Neither could the defendant KUNTZE have any doubt as to the legality of the orders which had been issued and passed on by WB South-East in the period before General KUNTZE'S assumption of office. For these orders either were passed on OKW orders or were based on instructions by OKW. General KUNTZE therefore had to assume that they were just as legal as the direct orders themselves. To this must be added that General KUNTZE only gained knowledge of these orders by and by in the course of his tenure. When General KUNTZE took over his office as Deputy Commanderin-Chief and Deputy WB (Armed Forces Commander) South-East, he was not only assigned to an area with which he was not familiar, but was also confronted by a situation which by its peculiarity was completely strange to him. Since General KUNTZE's main task was a purely military one it should be understandable that General KUNTZE, as Deputy Commander-inchief, concentrated above all on gaining a general picture of the defensive preparedness of the South-East, especially of the tasks and fitness of the subordinate troops and of the orders in the operational and tactical sphere issued before his time of command; and that he could devote his attention to the territorial matters in detail only in the course of time.
This is also the reason why General KUNTZE, as he testified in the witness stand, did not learn until December 1941 of BOEHME's basic order dated 10 October 1941 concerning reprisal measures in Serbia - Exhibit 88, which embraces most of the events which form the subject of the indictment. BOEHME himself did not mention this order during his situation report on the occasion of General KUNTZE's arrival in Belgrade, nor was General KUNTZE informed of this order and its practical effects when he took over office.
General KUNTZE clearly expressed his attitude towards the problem of reprisals in the witness stand. He convincingly stressed the fact that not the feeling of revenge, but rather the idea of a deterrent was the motive of the subordinate commanders for the order and implementation of the reprisal measures, and that their exclusive purpose was to restrain the population from committing further unlawful acts. Thus they were exclusively dependent upon the behavior of the population itself.
Then I omit the next two sentences and continue with the sixth sentence farther down:
May I especially point to his statement regarding his ignorance of the 10-day-report dated 30 October 1941 (Exhibit 124 IV 92/93,153) and of the events in Kraljevo and Kragujevac which were not reported in detail to the WB South-East and which occurred prior to his assumption of office and therefore cannot be blamed on him.
And then I begin on page 32 -- at the top.
General KUNTZE's attitude towards the problem of reprisals is clearly shown above all by his conduct after he learned of BOEHME's order of 10 October 1941 in December 1941.
As General KUNTZE stated in the witness stand and as was confirmed by the witness HOLSTEIN - furthermore by witness v. GEITNER in his testimony of 27 October 1942 - and by witness FOERTSCH in his testimony - he immediately took advantage of the improvement of the situation after the successful conclusion of the battles for Uzice at the end of November 1941 to alleviate matters.
Thus he influenced General BADER towards mitigating the implementation of the reprisal measures. The result of this influence was that General BADER in his order dated 22 December 1941 - reduced the reprisal ration to 1:50 and 1:25 effective as of 5 December 1941.
This order, however, and this must be particularly emphasized did not decree an inflexible application of this reduced reprisal ratio in every case. The nature and scale of each reprisal measure rather depended exclusively on the behavior of the opponents, that is, on the facts in the individual case, as is proved by the reprisal measures ordered by the Plenipotentiary General in Serbia which are cited in the prosecution documents. Therefore the order of a reprisal ration contained in General BADER's decree dated 22 December 1941, which states merely the maximum, cannot be regarded as a forbidden measure let alone as a violation of the rights of humanity, as the prosecution holds.
It may also be stressed that by virtue of this order in the decree dated 22 December 1941, no arbitrary application could take place, since General BADER, as territorial commander, in his order dated 20 December 1941 - expressly reserved for himself the right to inflict reprisal measures. This insured that the decision on the reprisal measures to be carried out rested in one hand, that is, with the person of the territorial commander competent for the ordering of reprisal measures, and that the arbitrary handling of reprisal measures by subordinate offices and troops was out of the question. The order in the decree by the Wehrmacht Commander South-East dated 6 February 1942, according to which the troops in cases of reprisal had to report the carried out or intended counter-orreprisal measures also, has to be understood in the same light. As General KUNTZE clearly expressed in the witness stand, this was to enable the commander alone competent for the ordering of reprisals not only to examine the conditions in each individual case, but above all to maintain a strict control.
In his efforts to mitigate the reprisal measures General KUNTZE furthermore made representations to the OKW to convince the supreme leadership of the Wehrmacht of the inexpediency - in the interest of the pacification of the country - of carrying out inflexibly the measures ordered by the OKW and in order to effect an alteration of the order of 16 September 1941. Although the OKW in its order dated 1 February 1942 had described in unusually strong terms the Wehrmacht Commander SouthEast as too mild and the measures taken in Serbia concerning the treatment of the rebels as inadequate, General KUNTZE even took it upon himself personally to try and make the OKW accept his plans for the pacification of the South-East.
As is shown by the witness testimonies of the defendants KUNTZE and FOERTSCH as well as by the defense exhibits KUNTZE 33, 34 and 35, General KUNTZE's proposals were, however, turned down by the OKW. Although after the failure of his representations at the OKW General KUNTZE knew that his behavior not only was in direct opposition to the opinion of the OKW, but beyond that was bound to strengthen the OKW in its negative attitude towards him, General KUNTZE did not give up his efforts to mitigate matters. From then on his efforts were directed even more than before to mitigate the implementation of the reprisal measures on his own accord. On the other hand General KUNTZE in these efforts to mitigate the measures had to take into account the mentality of the supreme leadership of the Wehrmacht. Therefore he had to give the OKW the impression that the measures ordered by it were being carried out accordingly. Thus on General KUNTZE's initiative, reprisal measures were reported in vague and ambiguous terms. Reprisal measures were reported as ordered, which in reality were not carried out.
And I omit the next sentence.
Furthermore reprisal measures were reported as ordered or as intended or as being in progress and Testimony FOERTSCH which according to the documents submitted either were not carried out at all or not nearly to the full extent.
Furthermore, the WB South-East reported reprisal measures to the OKW although these measures, an the 10-day-reports of the Commanding General in Serbia to the Wehrmacht Commander South-East of the same period show, were not carried out. I refer to the following list for the time 16 February to 5 August 1942 -- and then on page 36 at the top --I will not read these details in order to save time and will continue at the bottom of the page.
This difference between the 10 daily reports of the Acting Commander-in-Chief in Serbia to the Wehrmacht Commander South-East and the reports to the OKW, which can only be explained by the fact that the Wehrmacht Commander South-East, in reporting to the OKW, referred to the shootings of captured rebels after drumhead court martial as reprisal measures, is an especially striking proof of the smoke screen tactics in dealing with the OKW.
The assertion of the prosecution authority that the orders issued before or during the period when General KUNTZE was in command had led to arbitrary infliction of reprisal measures has been refuted by the evidence. As a result of the evidence it must be restated and stressed emphatically that while he was in command General KUNTZE never once ordered reprisal measures to be carried out on his own authority. Furthermore the prosecution authority was unable to prove that during General KUNTZE's time of office even one reprisal measure was carried out with the application of the maximum reprisal ratio of 1:100, as ordered by the OKW. Orders however which, although they deal with the application of a certain reprisal ration, have not been carried out according to documentary evidence, cannot support a charge.
Nor has the reduced reprisal ratio ever been ordered arbitrarily. According to the documents presented by the prosecution this reduced reprisal ratio was applied only once by General BADER during General KUNTZE's period of command. It concerns the shooting of 150 Communists for the murders of 3 ethnic Germans in Gross-Kokinda as reported in the daily report dated 10 January 1942 - by the Acting commanding General in Serbia to the WB South-East. According to document exh. 168 these ethnic Germans were field-guards, that is, officials, while the shot Communists, according to the daily report by the acting commanding General in Serbia to the WB South-East dated 6 January 1942 to 5 - Document exhibit 169, were a Communist robber band. This measure by the acting commanding General in Serbia against this robber band was a military necessity for the protection of the officials assigned to maintain law and order.
This is also clearly proved by the fact that after the implementation of this harsh but justified measure the situation in the Banat calmed down.
The further assertion of the prosecution that General KUNTZE by his order dated 19 March 1942 - arbitrarily raised this ratio, which General BADER had lowered at General KUNTZE's own suggestion, lacks all basis of fact.
This order dated 19 March 1942 was a military necessity in view of the imminent outbreak of another rebellion in the spring of 1942.
And then I skip the rest of this paragraph.
This order, however, was also influenced by the severe instructions in the OKW order of 1 February 1942 - Exhibit 529 - which General KUNTZE had disregarded until then, but had to adopt, after the failure of his representations to the OKW. In view of the attitude of the OKW to the defendant KUNTZE and in view of the control now to be expected, it was impossible to ignore this OKW order any longer.
This order is divided into two parts:
1. the general or skeleton order, which does not contain any statements in regard to reprisal quotas, 2. the directives annexed to the skeleton order, in which a reprisal quota is mentioned but by no means ordered.
These directives do not contain any new regulations but are a summary of the directives by the OKH for the combatting of partisans dated 25 October 1941. This is irrefutably shown by subsection 3 of the so-called "skeleton order", which expressly refers to the enclosure as a summary of these directives by the OKH already issued to the troops at an earlier date. These regulations of the OKH were re-issued as the defendant KUNTZE has stated in the witness stand as a reminder, which was necessary especially in view of the frequent changes of personnel in the command and the troop itself, and in view of the expected outbreak of another and more violent rebellion in the Yugoslav area, especially in Serbia. The correctness of this statement is proved by the fact that the order was limited to this area and was not issued to the commanders in Greece and the commandant of Crete.
On the other hand, these directives were more lenient by comparison with the regulations in the so-called skeleton order, which represented a literal repetition of expressions in the OKW order of 1 February 1942 - exh. They were at the same time to tone down the strong terms taken from the OKW order of 1 February 1942.
However, "directives" are not orders, but merely pointers and guides which do not entail strict adherence, as does an order. The various references contained in those directives should be regarded in this light.
The reference that "all means likely to achieve success are to be employed" did not give the troops unlimited power to apply arbitrarily any means promising success. What was really meant was the adoption of measures justifiable from the military point of view, as the defendant KUNTZE emphasized in the witness stand. This is also evident from subsection 3 of these directives themselves, which enjoins strict discipline on the troops and threatens severe punishment for excesses and lootings.
The reference in the directives that rebels and the Serbian population may be used, wherever possible, for clearing jobs in case of suspected danger from mines, is both by letter and spirit, just an authorization to do so.
And then I omit the next paragraph which deals with the clearing of mines and continue with the next paragraph at the bottom:
If it had been intended to have the mines themselves removed by captured rebels or the population, this could have been achieved much more simply by suggesting the possibility of using "danger hostages" in cases of mine danger, who might have been forced to walk first over the suspected mine-fields, a measure which General KUNTZE sharply repudiated in the witness stand.
Above all, however, the references to ordering reprisal measures contained in subsection 6 of these directives do not constitute an order. It is expressly stressed in subsection 6 that reprisal measures of a general nature might be advisable, should it be impossible to capture the persons involved somehow or other in the rebellion or to apprehend them. This therefore leaves a wide scope to the judgment of the territorial commander responsible for ordering reprisal measures on his own authority.
The above-mentioned reprisal ratio of 1:100 and 1:50 respectively must be regarded from this point of view, the more so as the word "for instance to a yet higher degree takes the edge off this reference."
Had General KUNTZE intended to raise the reprisal quota, as the prosecution contends, he would not have chosen this wording, but would have clearly ordered that, in view of the numerous reports concerning the possible outbreak of a rebellion, the reprisal quota would from now on be raised again to 1:100 for each soldier killed. But it is the very wording with its limitations and qualifications which clearly refutes the contention of the prosecution to the effect that the reduced reprisal quota had been raised again by an order issued on his initiative.
Since the directives in their entirety, as already mentioned, represent only a summary of previously issued directives of the OKH and, consequently, contain nothing now, this reference to the reprisal ratio, too, can be only a repetition of a provision laid down in these directives. It would be inconsistent and contradictory indeed, if after having used his influence with General BADER to ensure a reduction of the reprisal ration, General KUNTZE had reverted on his own initiative to this maximum reprisal ratio, as ordered by OKH order of 16 September 1941, unless this reprisal ratio, though with the afore-mentioned qualifications had been comprised in the directives of the OKH as well.
That the reprisal ratio laid down in the directives of 19 March 1942 of 1:100 did not represent an order is proven, above all, by the fact that no command agency construed this reference as an order.
This is quite obvious from the order of the Commander-in-Chief in Serbia of 25 March 1942 - which was based on the order of 19 March 1942 and does not mention the reprisal ratio at all. It is proven, furthermore, by the order of the Commanding General of 714th Infantry Division of 30 March 1942 - - - And then I start with the next paragraph: - -
That the reference to a reprisal ratio of 1:100 in the order of 19 March 1942 does not represent an order is proven most conclusively and irrefutably by the fact that this high reprisal ratio was not applied in a single case, not even after the issuance of the order of 19 March 1942, and that, on the contrary, as shown by documentary evidence, reprisals did not only decrease considerably after March 1942, but came to an end altogether, there being no longer any need for them, because the imminent uprising never took place and the population in general kept quite.
And then I continue with the next paragraph:
Summing up, I wish to restate:
Having regard to the imminent Spring uprising the order of 19 March 1942 was a military necessity. It did not contain anything new, but included in the so-called skeleton order the directives of the OKW order of 1 February 1942 and, in an enclosure, a summary of the OKH directives of 25 October 1941, for the combatting of partisans, which had already been issued to the troops. These directives of 19 March 1942 which, incidentally, were neither signed nor initialed, were no orders, but only "ad libitum" instructions. Consequently, the reprisal ratio referred to in the directives, is no order, but only a guidance, not obligatory and giving a wide scope, and even more restricted by the frequent use of such words as "for instance" and "may". The main point is that this directive never took effect. The afore-mentioned reprisal ratio has never been supplied, nor have reprisals increased after issuance of this order; on the contrary, they decreased substantially. In the summer of 1942, there were no reprisals at all.
This fact at the same time corroborates the principle derived from experience that frequently the threat of punitive measures will suffice to achieve a desired effect without the measures themselves having to be resorted to. The obvious conclusion is that the order of 19 March 1942 became known to the insurgents through their excellent intelligence service, and that for this very reason D. MIHAILOVITCH is the summer of 1942 imposed restrictions on his bands in regard to raids and acts of sabotage.
Before General KUNTZE took command, it was intended that in conformity with the order of Field Marshal LIST of 4 October 1941 - "suspects" that is, active supporters of bands, should be earmarked for reprisals. BOEHME's order of 10 October 1941 -- ordering the retaliatory shooting of "hostages" or "prisoners" had created some confusion as to what persons could be subjected to retaliatory measures. As a result, the troops confused these terms, and used in their reports the term "hostages" also for "prisoners" who were selected for reprisals. This confusion caused General BADER, at the suggestion of the defendant KUNTZE, to give a clear definition of the distinction between hostages held in reprisal and prisoners held for atonement in his order of 20 December 1941 . This order only mentions prisoners selected for atonement who are liable to retaliatory measures, but makes no reference to hostages; and goes on to state explicitly that only persons who, after scrutiny, were singled out in atonement for German lives because of their behavior and their attitude, and furthermore, insurgents taken prisoners during a lull in fighting and sentenced by a drumhead court-martial should be subjected to reprisals. This directive is also laid down in the orders of the 714th Infantry Division of 15 February 1942 - of the General Plenipotentiary in Serbia of 25 March 1942 - and the 714th I.D. of 30 March 1942. In addition, the latter two orders contain the explicit directive in regard to the treatment of suspects that only persons found guilty were liable to reprisals as prisoners held for atonement, while guiltless persons were to be released.
These orders furnish proof that the area commander and holder of the executive power in Serbia realized the seriousness of his responsibility for reprisals and, therefore, not only limited them to the absolutely necessary extent, but moreover shrank from shedding innocent blood even if the reprisals were military necessities, and, consequently, inflicted them only on persons who, having taken part in the insurrection, had been found guilty. In further evidence of the high sense of responsibility of the area commander in Serbia, reference is made to BADER's order of 20 December 1941 - according to which BADER reserved the imposition of reprisals to himself so that these could not be carried out unless on his written or teletyped order. How scrupulous this area commander was in regard to reprisals is also shown by his order of 21 June 1942 - according to which BADER subsequently even reserved the order for taking hostages to himself.
While the defendant KUNTZE held authority of command, only guilty persons were made to atone with their lives, that is, either captured insurgents or supporters of bands, who by the very nature of their offences were liable to the penalty of death according to the Guerrilla Decree of the OKH of 8 November 1939 and the Manual for General Staff Duty in War.
As already mentioned, the fact that inaccuracies occurred now and again in the reports of the subordinated command agencies and troops in regard to the designations of the persons selected for reprisals, is traceable to BOEHME's order of 10 October 1941 confusing hostages and prisoners. In any case, it can be regarded as proven on the basis of the evidence submitted that, as shown by the wording of the reports and the respective files, no shooting of "hostages proper" took place while the defendant KUNTZE was in command, even if the persons executed by shooting were erroneously referred to as "hostages" in the reports I refer to the following documents: