A further incident in the course of which hostages were executed as a reprisal measure has even been included by the prosecution in their indictment. Here they submitted, under No. 5:
"On 11 August 1944 troops of the 21, SS Mountain Division Skanderbeg under the authority of command of the Corps hanged 6 hostages at the location of the surprise attack as retaliation for an attack East of Kukes, on which occasion 2 motor cars were set on fire."
The prosecution exhibit on which the prosecution bases this reproach is a daily report of the XXI Mountain Army Corps of 11 August 1944. It is said here where it deals with the SS Division Skanderbeg:
"Slight losses of our own on the occasion of surprise attacks East of Kukes. 2 trucks burned out."
The prosecution, therefore, did not make use of just the decisive points from this prosecution document for the indictment, viz. the facts that the actions in question are surprise raids not attacks and that there occurred losses of our own and civilian losses. The prosecution mentions merely the fact, which is unimportant in this connection, that 2 trucks burned out. The court will draw the right conclusion from the comparison of the original document and the assertion of the prosecution. But General v. Leyser cannot be made responsible even for this occurrence for the most diversified reasons. First the above mentioned order of the Army Group F of 22 December 1944, digit C was valid also for this time and locality. This order ruled that the representatives with the divisions of the State government had to decree the retaliation measures in Albania too. But General v. Leyser had no authority in Albania and no responsibility for employees of the Albanian authority.
In addition to it the following point of view must be considered. The Division Skanderbeg was not subordinated at all to General v. Leyser. This is proved by the affidavit of Marshal von Weichs who declares here that General v. Leyser had no business with the SS Division Skanderbeg and that it was not subordinated to him.
General v. Leyser acted according to this order of Marshal von Weichs. He, therefore, cannot have any responsibility whatsoever for all that took place in the territory of the SS Division Skanderbeg. The prosecution submitted a series of further documents allegedly incriminating General v. Leyser, in order to prove his responsibility for the SS Divisions. Every single one of these documents was reduced to its value as evidence in the questioning of General v. Leyser, and this is the reason why I do not want to discuss them once more, but want only to sum up and state in regard to them that they have no probative value at all held against the, distinct depositions of Marshal von Weichs.
And now here is the third supplementary statement: In answer to this the Prosecution referred to Exhibits 403 and 404 in their closing statement. It interpreted those two documents to the effect that the subordination of the SS Division Skanderbeg under General von Leyser's command falls from them. This Inference, however, is incorrect. In Exhibit -- and I believe that is a typographical error; I believe it should be Exhibit 403 -- in Document 403 of the Prosecution, they referred to a radio message of 4 September 1944 by Major Frank to the Army Corps and they maintain that Major Frank was a member of the SS.
The fact that an SS leader asks permission for such a measure in the Prosecution says proves that the SS Division Skanderbeg was under the command of the 21st A.K. An can be seen from the document as well as from the designation of Major Frank, counsel for the Prosecution is mistaken here. Major Frank was not an SS man but commanding officer of the IInd Gun Battery of Infantry Regiment 522, which is a combat unit. Consequently, the facts do not support the conclusion drawn by the Prosecution.
Apart from that, General von Leyser described in his interrogation in detail what individual events are concerned. Also the Exhibit 404 further quoted by counsel of the Prosecution, equally is not apt to prove his contention. In one of these War Diary entries of 18 September 1944 we read that General von Leyser requested the SS Division Skanderbeg not to carry out a retaliatory execution which was scheduled as a reprisal measure for the two incidents.
In this document a reason is given for his request; whereas a commander in chief would never make a request to a subordinate by giving reasons for it. On the contrary, he would simply give an order. This entry again proves that there was no subordination in this case.
Herewith the incriminating documents are discussed by which the prosecution has tried to prove in its evidence proceedings the destruction of human lives through retaliation measures in the case of my client. They merely presented one execution of a hostage in the territory of the XV Corps and one in the territory of the XXI Corps.
In the rebuttal proceedings they tried to prove by introducing the Exhibit 658 of the prosecution that further retaliation measures against human lives were still carried out in the territory of the XV Corps.
They referred as an evidence to the daily report of the inspection of the Railway Security Detachment Croatia of 4 November 1943 and as a supplement to it to a teletype of 7 November 1944 with closer details regarding the daily report of 4 November 1944 in which the hanging of hostages at the location where the sabotage was committed is reported under digit 10. The sabotage occurred near Novo Gradiska, that means far from the area of the XV Mountain Corps.
When submitting the document the prosecution stated that this document is a daily report of the XV Mountain Corps. Already then I emphasized that it is not the report cf the XV Mountain Corps, but as the document clearly shows, is a daily report of the Inspectorate of the Railroad Security Staff Croatia and copies of a teletype from the same office. The Tribunal may remember that when this document was submitted I already pointed out that until now the prosecution has not asserted, far less proved, that this office was ever subordinated to the XV. Mountain Corps and thus to General v, Leyser. The Tribunal stated in this connection that the document does not show that the Inspectorate of the Railroad Security Staff Croatia was subordinated to the XV Mountain Corps.
On the contrary, this office was subordinated directly to the 2nd Armoured Army.
And now we come to Supplement No. 4: The Prosecution does not recognize this legal position. They claim the defense did not prove that the Inspectorate of the Railway Security Staff in Croatia is not subordinate to the 15th Mountain Division. The exhibits, however, of the defense they contain are weak. I do not have much to say to this objection. If the Prosecution claims that there was a certain relationship of subordination then it is up to the Prosecution to prove that, and it is not the task of defense to rebut a statement which has not been proven.
We go now to Page 34 at the top:
In this connection I may be permitted to refer to the statements I made at that time. This incident near Novo Gradiska cannot incriminate General von Leyser in any way. It occurred far away from the Corps area and involved an office not subordinated to him.
For the time being I have proved that it is true that the first incident which occurred in the area of the XV Mountain Corps was reported by troops of the XV Mountain Corps, but that it was ordered by the Plenipotentiary of the Croatian Government and that it concerned a measure for which the military had to take the responsibility. In case of the XXI Corps it has been proved that the incident occurred in the area of the XXI SS-division Skanderbeg, that in Albania too reprisal measures were ordered by the representatives of the Albanian Government and that furthermore this division Skanderbeg was not directly subordinated to General von Leyser. In connection with the 3rd accusation I have proved that it concerned an incident outside the Corps area, namely the report of the Railroad Security Staff Croatia, and that therefore my client cannot be made responsible for it. This is all the evidence the prosecution has submitted. This is all that could have been submitted to support the assertions of the prosecution, namely, that General von Leyser participated in the annihilation and extermination of the civilian population end that he too was responsible for the death of hundreds of thousands persons.
There could be no greater contradiction between assertion end evidence.
2.) To count one of the indictment the prosecution submitted a number of additional documents. These are reports, mainly submitted by the 373rd division, in which it reports the arrest of hostages as a reprosal measure. As the prosecution has not objected to the arrest of hostages as such, I believe that I can limit my words with regard to this subject. The only thing which can be said in connection with this count is that these measures in Croatia were also ordered by the plenipotentiary of the Croatian Government. In this connection it is also to be pointed out that they were not carried out arbitrarily, but they were the last measures in the territory Croatia which were taken as a warning to prevent additional attacks which were against international law, on protected legal properties, either of the troops or of the Croatian State. Here too the civilian population had previously been warned. It has to also be pointed out here, that only in cases where it had been proven beyond doubt that the civilian population had participated, hostages were arrested, and in addition it has to be pointed out that only these persons who were connected with the deed were arrested as hostages.
In accordance with its usual procedure, the prosecution proved only the actual taking of hostages as such by submitting the reports of the troops.
In general, the actual procedure cannot be reconstructed from the evidence submitted by the prosecution. On the other hand, the defense was in a position to clarify beyond doubt the incidents which are supposed to incriminate General von Leyser. In this connection I hope I do not need to discuss again all pertinent documents. I remind the Tribunal only of the interrogation of General von Leyser in connection with this count.
The next pages have similar examples in them which I do not wish to read.
I am now turning to Page 37 and to the last paragraph on that page:
In recapitulation I can say to count I that the prosecution has not brought any evidence for its assertion that retaliation measures were carried out in the area of General v. Leyser, unless they were based on military necessities. All that was done was necessary, it was caused by the attitude of the bandits and the civilian population, sympathizing with it and it met in any respect the laws and usages of war.
IV. COUNT II.
With this I arrive at count II. The nucleus of this count is the assertion by the prosecution of unjustified destruction and devastation of villages and cities and besides the stripping by plunder of the civiliam population. But it must also be said that about these counts that the material, submitted by the prosecution is insufficient in anyway to prove the charge of guilt brought forward against General v. Leyser. This count too was discussed in detail in the argumentation of the defense. I, therefore, shall limit myself also in this count to recapitulating the most important documents.
THE PRESIDENT: We will take our noon recess at this time.
(A recess was taken until 1330 hours)
COURT NO. V, CASE NO. VII.
AFTERNOON SESSION The Tribunal reconvened at 1330 hours.
THE MARSHAL: The Tribunal is again in session.
DR. TIPP: (Counsel for defendant von Leyser):
One count of this kind is presented against General von Leyser in the indictment. The prosecution asserted the destruction of the 4 villages Dreznica, Pisac, Tuzevic and Voivodersa.
I skip the rest of the page and continue on page 39:
But it is of especial importance that the representatives of the prosecution were unable to prove their assertion in this respect by even a single document. The Court will look in vain in the counts for the names Pisac, Tuzevic and Voivodersa. Neither was a witness of the prosecution heard about it. The prosecution consequently failed completely to bring any evidence. The defense, however, proved by the witness Kobe in spite of it that these villages were neither destroyed nor plundered.
Neither is the alleged destruction of the village Dreznica proved by the prosecution. This name appears only in 3 documents of the prosecution. But the examination of these 3 documents shows that only war equipment was taken away from this village and its surroundings.
I omit the rest of the page and continue on page 40:
The mentioned reports contain finally combat reports on the destruction of shelters for the bandits. But not even the prosecution will be able to dispute the fact that the destruction of enemy shelters represents a legitime action of war. This is all what the prosecution was able to submit on the events which she included in the indictment.
In order to clarify further the representation of the prosecution I pass now to the other documents of the prosecution which shall also prove the senseless destruction and pillaging of civilian property.
I would like to deal first with the first charge. The prosecution submitted a series of reports concerning it. They talk of the destruction of villages and houses. But the prosecution was unable to bring any other evidence for its assertion that it was a senseless, not justified destruction. My conception is -- for reasons of principle -- that the prosecution has failed to fulfill the duty of evidence which was its task. It is not sufficient in times of war to prove that destructions did happen, in order to demonstrate that the destructions in question were senseless. Here the result off of the evidence is reversed. Whoever asserts a senseless destruction must prove the senselessness clearly and unequivocally. The prosecution has not done so in any way. This circumstances alone which goes equally for all documents of the prosecution excludes a condemnation for this count according to my opinion.
Incidentally it is not sufficient to assert in an overall way that all destructions were senseless, for the documents belong to two completely different kinds.
The first one of these groups and the by far most important is the one which deals with the destruction of shelters of bands and villages of bands. But it goes without saying that shelters and bases of the enemy can be destroyed in combat, must even be destroyed. Such measures are justified without further ado by the military necessity.
I will omit the rest of this page and recommend it for judicial notice. Continuing on page 42:
Further belong all occurrences in which the destruction of alleged hospitals is reported to such destructions which were necessary for military reasons.
All destructions of hospital huts were reported in connection with the destruction of bases of the bands. As I have proved in my proceedings of evidence the places in question were not hospitals in the sense of Central European hospitals but only barns or huts which served for band shelters and could also be used occasionally for wounded persons. I would like to recall in this connection the deposition of the witness Kobe who described two of these so called hospitals from his own knowledge. I will skip the rest of this paragraph and continue further at the bottom:
Of further importance in this connection seems the deposition of the same witness who declared that the region remained in the possession of the German troops so that the destroyed huts could not any more have found any use for wounded enemies. I may still point in this connection to the fact which follows from the documents themselves that these bases of the bands were reached after longer lasting fighting by the troops, so that the buildings were completely evacuated. The witnesses Kobe and Vinckelbrandt were also able to describe this in detail.
This gives evidence, according to my opinion, for the fact that these destructions were not against the international law either. Incidentally, it is not the duty of the defense to give this evidence.
I must turn now to another group of documents. They pertain to occurrences in which the units report that houses were burned down in looking out for acts of sabotage -mainly rail blasts and sabotage by mines. It is not necessary to enter here any more into the legal position. It is sufficient to point out that the actions concerned were not regular combat actions which did not exist at all, not even combat measures against large bands, but that they regularly were hostile actions from the circles of the civilian population.
In short words the actions concerned were actions of house partisans. From the documents submitted by the prosecution and as well from the exhibits of the defense it results on this count that plots of this kind occurred nearly daily, especially against the railway which served the civilian population just as much as the military. It follows further from these pieces of evidence that a retaliation measure was not carried out by far for every case of sabotage, but that retaliation measures were only taken if cases of sabotage happened in spite of warnings and of threats with retaliation measures.
It seems to me characteristic for the charges raised against General von Leyser that only a small number of destructions for reasons of retaliation were submitted in spite of the comparatively long time in which General von Leyser headed his corps in Croatia and Albania and in spite of the large area; this while it follows from the documents of the prosecution themselves that by far the paramount number of cases of sabotage were not atoned for. The same results also from the evidence submitted by the defense. For this kind of retaliation measures apply otherwise all the prerequisites on the competency for decreeing retaliation measures which I have fully explained above. Though General von Leyser consequently cannot be considered responsible for these retaliation measures even according to the documentary evidence of the prosecution, the individual documents were discussed in the evidence proceedings of the defense for the purpose of argumentation. In the case of every single exhibit it was proved that it was an entirely justified reprisal measure.
Here too I can save myself the trouble to discuss all documents once more. However, I want once more to prove the correctness of my assertion by summing up and by a few examples.
I will omit the rest of this page and continue on page 46.
Another incident, which I would like to discuss, can be found in a report of the 373rd Infantry division. Here the destruction of houses is reported as retaliatory measures for the blowing up of a railroad line. This same report has been submitted by the prosecution four times, In spite of this, the reason for these retaliatory measures is not apparent. I have, therefore, submitted supplements to document 075, offered by the prosecution, in the form of von Leyser exhibit 29.
I think I can omit the rest of that page which contains details which I do not want to read; also page 47, I continue on page 48 at the bottom:
I believe I do not need to discuss this count of the indictment any further. The prosecution was not able to offer any evidence proving that, from a military point of view, these destructions were unjustified. The defense, on the other hand, has proved that the reported destructions were necessary from a military point of view and therefore justified.
May I now come to paragraph 2 of Count 2 of the indictment. The prosecution asserts that General von Leyser has ordered his troops to loot from the Croatian civilian population or, at least, has tolerated these plunderings.
However, at the end of the argumentation, no evidence whatsoever has been submitted to prove this fact.
None of the evidence submitted by the prosecution shows that troops commanded by General von Leyser looted civilian property. According to the discussion on operation Dreznica the documents submitted by the prosecution merely describe the removal of military equipment which was the property of the former Italian Army. If, in connection with an operation it is mentioned that stores are to be cleared and cattle is to be removed, this order too is evidently directed to deprive the bands of their base of supply, to empty their supply stores and to remove the cattle necessary for their maintenance. In addition, may I add that according to a number of documents submitted, the bands requisitioned by force cattle and food from the civilian population. The German Wehrmacht, however, after it had confiscated this cattle, handed it over to the peaceful civilian population.
I will skip page 50 and page 51 since they only contain details and I would just like to draw the judicial attention of the Tribunal to these details. I will continue to page 52.
Summing up Count II of the Indictment, I conclude that the troops of General von Leyser did neither commit wanton destruction nor looting. What happened was justified through military necessity and, therefore, legal. No charge against General von Leyser can, therefore, even be upheld under this count.
I would like to make one more remark in regard to this Count. The prosecution entirely overlooked that the troops of General von Leyser wore stationed in a state allied to Germany. An allied force is not interested in the reckless destruction or plundering of the country;
it would rather endeavour to set the economy of that country on its feet and try to protect it from the ravages of war. The troops of the XVth Army Corps, who took this viewpoint as a matter of course, acted accordingly.
And now, Your Honors, I would like to over to Count III of the indictment.
The prosecution has charged all defendants, including my client, of having treated Regular Forces as Irregular Guerillas and, tens of thousands of prisoners of war were murdered when orders they had given in this connection were carried out.
I have already explained above that these assertions of the prosecution are entirely incorrect as far as the period General von Leyser spent in Croatia is concerned. I had mentioned, and for the sake of elucidation I repeat, that in accordance with an order issued by the OKW on 18 August 1943 the partisans had to be treated as prisoners of war by the troops of the German Wehrmacht. I also stated above that the troops of General von Leyser in Croatia obeyed this order to the word. As the important facts of this Count have already been explained above, I can now limit myself to discuss the relevant prosecution documents. To begin with, I would like to say one thing: The troops of General von Leyser conducted absolutely regular warfare against the so-called large bands just like against any other enemy, although it was known at that time and is known today that according to International Law these large bands did not constitute regular forces. The Prosecution has been unable to produce one document wherein the slightest proof is shown that the troops of General von Leyser did not pay attention to the International Law in conducting these battles. The documents, which were submitted in this connection, show clearly that the troops of General von Leyser took prisoners.
There are reports on prisoners, on deserters from the enemy, on prisoner of war camps; all these are points which prove that the division commanded by General von Leyser conducted a fair warfare. In connection with this Count may I also refer to the statements made by my client himself and also to the statements of the witness Kobe.
Now, what did the prosecution produce in order to prove that the way the partisans were treated by General von Leyser was a violation of the International Law? Here too I may be permitted to prove that nothing which could incriminate my client has been offered. No order was submitted by the prosecution, which my client has issued during the months he commanded the XVth and XXIst Corps which would direct that no prisoners should be taken or that captured partisans should be shot. The prosecution could never have submitted such orders, because such orders were never issued by General von Leyser. The prosecution have not taken too much trouble in producing evidence supporting their charges that partisans were killed by troops of General von Leyser contrary to the rules of the International Law. The prosecution submitted all reports of the subordinated divisions available to them in which mention is made of members of bands who were shot to death. The prosecution, apparently, believed that they proved that this shooting to death took place after the prisoners were captured and in the prosecutions opinion was thus a violation of the Martial Law. I do not need to trouble myself with the question which Law governs warfare with irregular forces. It is sufficient to point out that even according to the Rules of Land Warfare members of irregular troops cannot claim treatment as members of fighting forces.
However, this viewpoint does not apply for the evaluation of the material submitted by the prosecution, because no evidence at all has been produced which would prove that captured bandits were not treated as prisoners of war.
To arrest persons who are suspected of being partisans is as such without doubt in accordance with the International Law and perfectly justified. This corresponds also to the legal principle laid down in Control Council Law No. 38 which refer to the internment of persons, who are not guilty of any particular crime but can be considered dangerous to the aims of the occupying powers. I can, therefore, disregard those documents which deal merely with arrests of persons suspected of being partisans.
It is comparatively easy to prove that the reports submitted by the prosecution, concern battle incidents in the course of which the bandits were killed. In general already the documents submitted are a proof for that fact; in any case if they prove it are presented and considered as complete documents, not as excerpts. However, in this connection I would like to point out that the prosecution, as a rule, presented only piece of the report which shows the shooting to death of the partisan in question, even if in the original the entire incident was recorded and it could be seen from the record that it concerned a military operation.
The following paragraphs contain details. I will omit them, and continue with the second paragraph on page 46.
This group of documents does not prove that troops of General v. Leyser had shot to death bandits just because they were bandits. The bandits fell in battle or fell through the legal employment of weapons in case they did not stop when called upon to do so. Therefore, all these instances have no connection whatsoever with the charges made by the prosecution.
To Count III of the indictment the prosecution submitted an additional document concerning incidento in the area of tho XXIst Army Corps. On account of its importance I would like to discuss it briefly. In a daily report submitted by the XXIst Army Corps dated 30 August 1944 the killing of 20 bandits is reported. In this case, too, the prosecution was apparently under the impression that these men were executed for the sole reason of being bandits. This conclusion drawn by the prosecution is in severe contradiction to the chain of command existing at that time and is utterly arbitrary and not proved by anything. This execution is listed in the general survey of the daily report of the corps without reference to any detailed specifications. As German troops wore ordered to report to their higher offices all incidents which came to their knowledge and could be of significance to the higher command, this report does not prove at all, that these men were executed by troops under the command of General von LEYSER.
Furthermore, from the excerpt submitted one cannot determine the reason for this execution.
This surprise attack is reported under Korueck 1024, a rear Army office, which was not subordinated to the XXIst Corps. The description given by General v. LEYSER Proves, that no troops subordinated to him were stationed in the area in question. The commander of the rear army area was, on principle, directly subordinated to the Army and not to a Corps. Thus, my client is not responsible for these incidents and the evidence submitted by the prosecution is not sufficient to prove that General v. LEYSER was responsible.
Therefore exhibit 401 belongs to the group of prosecution documents which deals with incidents of units not subordinated to my client. It refers to incidents involving the Ustaschaor Cetnic groups and in one case a Croatian fighting unit. In all these documents, there, is however, only one factor to be considered: The actions reported were not carried out by subordinated troops, but by Croatian units.
It was proven by the evidence presented by the defense that the Croatian army was generally and on principle subordinated to the command of the Croat Ministry for the armed forces, independent of the German Wehrmacht. Croatian troops could only be subordinated to a German commander for tactical deployment, in individual cases. But also in these cases the German commander did not have any disciplinary or judicial authority.
No German commander of the troops was independently authorized to take steps against the Croatian army. In case he disapproved of something, he could only report it to his superior, through the official channel, via the plenipotentiary German General, in order to induce the Croat government or the Croatian army to take steps.
I refer, in this connection, to the statements of my client on the witness stand, and, in particular, to the detailed statements of the witness KOBE. In addition, I refer to the statements of the witness KLEIN.
If this viewpoint was taken, in regard to regular units of the Croatian army, the Domobranes and Ustascha battalions, it was even more the case in regard to anything which occurred at the self-defense units of the inhabitants, that is at the Chetnik units, at the civilian Ustascha and at the Croatian battle units. No chain of command existed there, much less any subordination. Those units acted completely on their own. The German troop commander could again, only report such cases to his superiors, in order to obtain an intervention by the Croat Government or in order to inform the higher command of the incident.
As shown by evidence, such incidents were included in reports of the troops, in a quite unequivocal wording. I refer also in this connection to the statements of my client, as well as to the statements of the witness KOBE and KLEIN, which, partly, unequivocally clarify these incidents.
Before I finish with this count of the indictment, I want to discuss briefly exhibits 673 and 674 which were introduced during the rebuttal proceedings against General von Leyser. Both documents have in common that they concern measures of units which were not oven according to the charges of the prosecution subordinated to General von Leyser.
The 1st document concerns an action planned by the division Brandenburg against Tito. It does not state that General von Leyser ever learned of this plan. I omit the next few sentences.
Exhibit 674 is a report to the XV AK to the effect that a reprisal measure is planned and that the action concerned is to be carried out by the V SS-corps.
This corps has, obviously, also suggested the reprisal measure, as results from the letter referred to. The V SScorps was not subordinated to General von LEYSER, as the counsel for the prosecution recognized himself at the submitting of the document. It is, therefore, the plan of a superior office, suggested by a unit which was not subordinated to General von Leyser, to order the execution of these reprisal measures. I do not know, how, in view of these facts, General von Leyser can be held responsible for it.
Concluding I may say that the prosecution has brought no evidence against General von Leyser, in regard to count III of the indictment, as far as it has been discussed until now.
After the discussion of these document groups, I come now to the other point of count III of the indictment, concerning the issuing, transmitting and execution of the commissar order, of the commando order and of the so-called order against Italians.
I will omit the rest of the page, also the beginning of page 61 and continue at the bottom, the paragraph before last, on page 61:
As General von Leyser did not take part in the capitulation of the Italian army, I must not discuss the legal problems of that issue.
I come, now to the commando order. This order was issued and transmitted in October, as shown by the exhibit submitted by the army. General von Leyser belonged at that time, to the Fuehrer-Reserve. He did not take over another command until November 1942, at which date he took over a corps on the Russian front. The commando order could, therefore, neither have been received, nor transmitted by General von Leyser. Neither did he receive the supplementary order of the Wehrmacht Commander South East of 28 October 1942.
In addition, no document was produced by the prosecution which proves that the commando order was carried out in the zone of the XV and XXI A.K. Army Corps.
The same is true of the supplement to the commando order referring to allied military missions, which was submitted by the prosecution. The documents, which were introduced subsequently during the rebuttal proceedings, do not refer to units subordinated to General von Leyser.
The defense could, on the other hand, prove the fact that the commando order was not carried out.
The next paragraph concerns details and I continue on page 63 at the top:
May I, furthermore, point to a number of defense documents confirming the fact that the commando order had not been carried out.
It has to be emphasized, in this connection, that the prosecution has proved neither the transmission, nor the carrying-out of the commando order, in regard to General von Leyser. On the other hand, the defense has brought evidence that both orders were not carried out in the zone of General von Leyser.
The documents and orders discussed in the above refer to General von Leysers assignment in Croatia and Albania; the commissar order which is also mentioned in count III of the indictment refers to my client's assignment in Russia.
The prosecution submitted in its evidence only the commissar order as such. It did not even attempt to prove that this order had been transmitted by General von Leyser, neither that it had been carried out by the troops under his command.
General von Leyser has stated and his statement was confirmed by affidavits -- that he was informed about this order, but that it had been pointed out explicitly that it was not to be carried out. It was also interpreted and handled in this manner in the zone of the 269th Infantry Division.