PRESIDENT: We will take our afternoon recess at this time.
(A recess was taken.)
Only those people who pass over the facts and conditions, which existed in Germany from 1933 to 1945 and were felt very badly by a considerable part of the Wehrmacht, and who does not want to see them, only such a person cannot be influenced, when forming judgment on the possibilities of a fight for power between the Reichsfuehrer SS and the original three parts of the Wehrmacht. Such an influence must come from the difficulties, the slights, the frequent sentiment of impotency the necessity to recede before the strongest man of the NS regime, which was presented frequently to the leaders. But whoever values the things of this world sensibly and impartially, as it behaves a wise judge, such a person cannot demand of a military leader who sat himself at the periphery of the events that he should take part in the actual combat in the field of internal politics. General Speidel could only limit himself to drawing a distinct dividing line between his own and alien competencies.
III. The prosecution is basing their assertions mainly on daily reports, other regular routine reports and monthly reports. In the course of this trial and on behalf of my client, in particular, the question how these reports were compiled and to what extent they justify conclusions with regard to the responsibility of the senders, has explicitly been dealt with. It is, therefore, sufficient for me to point out that those reports allow conclusions establishing the responsibility of the sender only to a minor extent. Especially, the so-called Icreports are particularly unsuitable in this respect. The section I c was, as it were, a kind of news agency; its job was to report all incidents whatsoever, including those which were outside of the scope of the responsibility of the commanding officer, and to transmit these reports to the superior authority through the so-called I c -- channels ac-cording to a system prescribed by OKW . The I c was not obliged to submit these reports in detail to his superior or to the commanding officer. IV. These basic explanations concerning the command authority of General Speidel -- which I could submit only briefly for lack of time -- serve the purpose of establishing the scope and the limits of my clients responsibility.
I shall conclude this general part of my plea by dealing briefly with the legal criteria of the criminal responsibility of my client.
The sentence of the IMT states (I quote) "It is one of the most essential legal principles that criminal guilt is personal." This is in accordance with both the principles generally established and with those recognized by the IMT, according to which the criminal guilt of the perpetrator requires not only that he is cognizant of the relevant facts but also that he realizes that the act in question is unlawful . Furthermore, the perpetrator must have acted either with intend or by negligence. However, according to the established principles governing criminal responsibility, negligence constitutes criminal responsibility only in those cases in which this is expressly provided by law. Neither the charter nor central council Law # 10 contain this provision. In consequence, only acts committed with intent can be punished, This agrees with the own point of view of the Prosecution, because in all the four counts the defendants are charged with having committed the incriminated acts with intent and willfully. Thus, a conviction cannot be based on the consideration that General Speidel negligently omitted to ascertain whether his own interpretation of the limits of his jurisdiction and responsibility was correct. This has rightly been pointed out in the opening statement of the prosecution: (I quote) "We would not have brought charges against these men, if they were to be accused of mere carelessness..." It is true that according to established legal opinion criminal responsibility for intent does not require cognizance of the specific legal provision violated by the act. It is sufficient that the perpetrator realizes in a general way that he is acting against the law, which disapproves of his act. This has been stated by the IMT when dealing with the guilt of the individual defendants. (I quote:) "They must have known that they were acting in defiance of ...interna ional law".Which indications, then were available to Speidel enabling him to realize that the actions charged to him were unlawful in the meaning of International Law?
It will seem obvious to everybody that the principles of humanity, international ethics and common decency are hardly apt to serve as a standard of what is good or evil in war. In war, good and evil, lawful and unlawful, human and inhuman are often separated but by a hair's breadth. Actions considered murder, arson and the like in peace time are, in war time, acts of war covered by international law. By general standards , all acts of violence committed as necessary acts of war are inhuman; this applies to the whole range from the killing of an unknown enemy who never wronged any soldier on the other side personally, to the heavy bombing of inhabited cities, the result of which we are seeing every day when looking through the window. The only clear limitation is this: If an act is not dictated any more by the purpose of the war, if it is outside of the conduct of the war, then good and evil can be ascertained by common ethical standards. Rape, robbery committed for personal enrichment, are instances of this kind. However, in the case of acts which serve the conduct of war, the intrinsic necessity of committing inhuman acts in the course of warfare, renders it hopeless to draw a borderline between inhuman acts still permitted and inhuman acts which are forbidden.
If we recognize the fundamental fact that warfare as such is an inhuman and cruel activity and that the conceptions of good and evil cannot be applied in warfare at all, and if we admit war as a given fact, then a borderline can only be drawn between acts which are permitted and acts which are prohibited. This delimitation cannot be derived from the conceptions of good and evil; it must rather be established by clear-out rules of international law. The perpetrator must be cognizant of these rules, otherwise he cannot be charged with intent.
If the defendant had in the years from 1942 to 1944 tried to tackle these questions, the very nature of the subject matter would have made this task quite as hopeless as if he had attempted to go by his sense of good and evil. This becomes more evident, if we survey the present even legal position prevailing in this field of International Law. No International Law at all has been laid down by statutes with regard to reprisals and to the taking of hostages. Whoever seeks information on this subject can only refer to the second source of International Law applicable to "warfare, viz. to the customs of war. However, it has been fully demonstrated in the legal statements submitted by no other than the prosecution what the customs of war amounted to before this world war. It has been clearly shown that all belligerent armies have from ancient times to date used the taking and executing of hostages as a reprisal whenever they were forced to do so. The fact that this measure was used by the Germans more frequently than by others during the last fifty years is explained by the simple reason that they entered foreign territory more often than their enemies during this period. If it happened from time to time that professors or certain politicians voiced their opposition to this kind of military action, this was only a criticism of this custom of war, but it could not abolish it.
I am now proceeding to the individual charges against General Speidel.
I.
1.) During his examination-in--chief, General Speidel has admitted that he ordered reprisals in two cases. The first case occurred in January 1943, the second case in June 1943. With regard to the first instance, General Speidel has made a full statement and has accepted the responsibility for it, although it was not clear whether the prosecution intended to charge him with it at all. I would like to stress this particularly. By an explicit statement, General Speidel has demonstrated the military situation prevailing in the period in question, the nature and the importance of the acts of sabotage involved, and the urgent necessity of preventing further acts of sabotage by reprisals.
The port of the Piraeus, the island of Salamis and the naval installations located there were as vitally important for the German armed forces in the Mediterranean and for the supplying of the German forces in Africa and on the Mediterranean islands, as every ton of loading space. At the turn of the years l942/43, naval installations, transports, and freighters were the targets of permanent assaults and attempts of sabotage by an enemy, who did not openly oppose the German armed forces, but committed his criminal acts under the cloak of the night, and remained in hiding. It became evident that these assaults and acts of sabotage followed a concerted plan; it was impossible to neglect their serious impact on the conduct of the war. The argument submitted by the prosecution "that a few shots fired at night did not amount to muc, and that particularly no damage was caused" misses the point altogether. Sabotaging of ships resulting in the loss of vital shipping space cannot be considered a negligible incident. Is there any army in the world which remains inactive spectator if its security and its mission as an occupation force were threatened? Is there any responsible general or troop commander who remains an inactive spectator if he is confronted with assaults and acts of sabotage which he recognize as parts of a large scale action impairing the security of his forces? Every occupying power is entitled both in law and by the customs of war to order the inhabitants of the country to surrender all arms and to prohibit armed resistance and armed aggression. This has been fully developed in the preceding pleas; the same applies to the legal absurdity put forward by the prosecution which denies the German armed forces any status of an occupying power, as far as events in the Balkans during the last war are concerned.
Part of the rulings issued by the American occupying power in Germany have been laid down in ordinance # 1 promulgated by Military Government.
According to the maxim "jura no vit curia" I may assume that the Court is conversant with this ordinance. According to the ordinance, possession of arms, armed aggression or resistance are crimes subject to capital punishment. The German power of occupation in Greece upheld the identical principle.
Your Honors, question of military necessity should be judged upon by military experts.
However, the military necessity for action to prevent further assaults and acts of sabotage has been explained by my client in such a convincing way that I can renounce the opinion of military experts on this matter.
The prosecution has not denied that reprisals form part of the existing customs of war. Nor has the prosecution claimed that this specific custom of war is "unlawful. Reprisals as measures of warfare are not measures of revenge nor are they a punishment; they are a form of self-defense provided in International Law, and a method of coercion admitted in International Law. It is true that reprisals as measures of warfare are partly rejected in jurisprudence; on the other hand, there are authors who consider them the only possible method of coercion and the only sanction available under the law governing warfare.
The decisive criterion is whether this custom of war is actually still in use. This, too, cannot be denied. When producing evidence for General Speidel, I have described a case of the shooting of hostages which occurred in Reutlingen in the French Zone on 24 April 1945. My only purpose in introducing this incident was to prove that the custom of war consisting in the shooting of hostages is known, recognized and practiced on the side of the Allies, too. Otherwise, the fact that one of the executed hostages was not only a Lt. Colonel of the medical corps -- in other words a medical officer protected by the International Red Cross -- but a Prisoner of War at the same time, would call for further discussion. But back now to the reprisal measures of General Speidel. General Speidel was responsible as commander of Southern Greece for the supplies going to the Greek islands and Africa -- as long as German troops were there. The naval installations were the object of surprise attacks and acts of sabotage; considerable damage had taken place. General Speidel was confronted with a situation which compelled him to take measures unless he would violate in the worst manner the duties which derived from his official position.
What was it that General Speidel did now?
a.) He looked on for a long time in spite of the accumulation of acts of sabotage around the turn of the year 1942/43;
b.) He initiated investigations on the perpetrators;
c.) He took conscientiously into consideration the military necessity and the success to be expected;
d.) He made sure for himself of the admissibility according to the principles of international law of the intended measures by asking for the legal opinion of his chief legal adviser.
a.) He obtained the agreement of his immediate superior;
f.) He took the hostages from a circle of individuals who were under suspicion as a result of the investigations;
g.) He published the measures.
General Speidel also started first an investigation in the case of the Citta di Savona. This case took place in June of 1943. The investigation, however, did not result in the apprehension of the perpetrator after 5 days. Otherwise General Speidel proceeded in the same way as in the first case.
The measures which General Speidel ordered in these two cases had the success that he had planned. Acts of sabotage were discontinued for quite a period of time in the first time. No more new acts of sabotage happened on Salamis in the following time. No more acts of sabotage against ships happened at all after the June reprisal was carried out.
Thus it cannot be denied that the reprisals were successful. The assertion of the prosecution is thus completely refuted that the measures, ordered by General Speidel meant "letting loose a torrent of senseless death and blind foolishness" or as said in the opening statement of the prosecution at another place a deliberate program of terror and extermination was inaugurated and executed which was boundless in its arrogant contempt for the inhabitants of the lands merely because they were regarded as inferior."
2.) Under count 1 General Speidel with the execution of 50 communists by troops under the command and the authority of the Military Commander Greece on, or approximately on, 10 January 1944, as retaliation for the murder of 2 German policemen. This case is contained in Exhibits 432 and 437.
It follows unequivocally from these two documents; in question were
a) murdered members of the Mountain Infantry Regiment 18 of the SS/Police
b) a measure during an operation in the Eastern part of Beotia.
Beotia was the combat area against the bands of the Senior SS and Police Leader. It was assigned to him under his own responsibility by the Army Group E. Subordinated to him was the Mountain Infantry Regiment 18 of the Police. The Military Commander Greece had neither the command nor the authority over this regiment on or approximately about 10 January 1944.
Count 1 digit 5 concern execution of 52 hostages in Tripolis, 44 in Sparta, 59 in Korinth, prosecution document contained in Speidel document 33.
From that it follows unequivocally that this reprisal was carried out by the 117th Rifle Division. General Felmy also called this case in his direct examination a measure of the 117, Rifle Division. The 117th Rifle Division was not subordinated to the Military Commander Greece. It is not to be understood how the prosecution arrives at the assertion that the executing unit was under the command and the authority of the Military Commander. Last, it must be pointed out that the carrying out of the reprisal was already reported under the 13 March 1944.
General Speidel was on sick leave from 23 January till 17 March 1944 in Germany. This fact probably removes the last doubt for a responsibility of General Speidel.
Count 1, digit 5 w: The so-called Krech's case:
All the documents, pertaining to this occurrence are compiled in Spledel Exhibit 27.
One single report of the Staff of the Military Commander Greece on the reprisals caused by the murder of General Krech was submitted by the prosecution. This I c morning report of the Military Commander Greece on 30 April 1944 contains 2 incidents from Athens and one more from the Peloponnese, all of which had nothing to do with Krech Case. This report belongs to the regular reports to the superior bureau which kept it informed on the events in the Greek area. It was pointed out at another place that nothing at all can be concluded on the responsibility of the reporting bureau from such a report. Thus it is more than poor to submit one single report for such a grave accusation as the present one. It must justify from the outset the heaviest doubts in the compelling consistency of the prosecution' argumentation. These doubts increase and change to the certainty of the correctness of the prosecution's assertion, if the following facts are considered:
All other reports, submitted by the prosecution, do not come from the Military Commander Greece. All the intended reprisals are reported already in a report of 28 April 1944, which, therefore, is dated 2 days before the report of the Military Commander Greece, while the single report of the Military Commander Greece of 30 April 1944 mentions only part of the measures. Neither final report on the Krech Case comes from the Military Commander Greece. This would have been the case with certainty, if the reprisals would have been ordered by him.
b) General Krech was commander of the 41. Fortress Division, consequently Commander of Troops. According to the order Loehr reprisals belonged to the duty of the troops.
c) If the witness SONTIS reports of the shooting to death of 200 hostages in Athens on 1 May 1944. who allegedly -- though not at all conclusively, taken from the concentration camp Chaidari, the participation of the Senior SS and Police Leader is excluded in any form, though not fully proven either. Chaidari, however, was a police institution of the Senior SS and Police Leader, on which the Military Commander Greece had no influence.
Thus the assertion of the prosecution, that General Speidel had perhaps ordered and carried out the execution through the only security battalion which by the way was entrusted exclusively with guard duties, this assumption becomes an entirely unproven assertion.
e) If the carrying out of the reprisal had been ordered by the Military Commander Greece, the Ia of the Staff of the Military Commander who was then also Deputy Chief would have learned of it at any rate. However, the person in charge of the section I, the former Major MUEHLTMANN, as also his assistant officer, Lieutenant Heilingbrunner declared under oath that the Military Commander Greece had nothing to do with the carrying out of reprisals caused by the murder of General Krech.
The then field commander of Athens, Brigadier General Eisenbach declared under oath as well that nothing became known to him that the Military Commander Greece ordered the shooting to death of the 200 communists.
He would undoubtedly have learned somehow of it in consideration of the close relationship in and off duty between the Military Commander Greece and the Field Commander Athens.
f) I finally refer to the testimony of General Speidel as witness in his own case.
Summarizing, I arrive at the conclusion that the prosecution has submitted no evidence proving General Speidel's responsibility for the carrying out of reprisal measures in case Krech. In view of the evidence submitted by the defense, there is no room for an assumption beyond any reasonable doubt, for less a conclusive proof, that General Speidel had any responsibility in this connection.
In document Speidel No. 60 all reports contained in the documents submitted by the prosecution and having any connection with the Greek area have been compiled in 6 sections and were arranged according to time and locality.
In the first parts of my statements I have shown the fundamental elements on which the judgment as to whether General Speidel is responsible for these incidents or not and the reprisals carried out must be based. None of these incidents can be traced back to troops commanded by or subordinated to him. If any individual incident is mentioned in the indictment, the formula under his command or subordinated to him has always been added. The prosecution are right in emphasizing the fact that this criterion in itself is decisive. But just because this criterion is decisive it must be established beyond any doubt. Certain questions which came up in the course of the presentation of evidence induce me to give once more a brief but precise description of the scope return of the commands and authorities in Greece:
a) The sphere of activities of the Military Commander of Greece exclusively comprised matters of administration -- in contrast to other Military Commanders in the South Eastern territories.
b) The military administration did not materialize, as the Greek government received basic instructions from the "Special Commissioner of the German Reich";
c) The operational and tactical command in the Greek territory was exclusively in the hands of Army Group E;
d) The following were committed in the Greek area: the 68th corps, the 22nd mountain corps and the commander Salonika -- Aegaeis. These staffs and their troops were subordinated to Army Group E.
e) The subordination of these troops to the Military Commander in his capacity of territorial commander was limited to matters of supply and welfare;
f) This difference becomes apparent when the question of deputies is taken into consideration:
The C in C of Army Group E was represented by the Senior Commanding General, the Military Commander on the other hand by the Oberfeldkommandant; if the corps had been subordinated to the Military Commander the Senior Commanding General would have been his deputy, which was, however, not the case.
g) Conditions in Greece were completely different from those in Serbia, where the Military Commander South East was at the same time the tactical commander. That was why the latter was also competent for tho so-called reprisal measures carried out by the troops and police units, while in the Greek area the C in C of Army Group E was competent for these matters;
h) The Higher SS and Police Leader was competent for police matters, he in his turn was subordinated to the Reichsfuehrer SS;
i) The Commander-in-Chief of the Army Group E, not the military commander, was in charge of the tactical deployment of the police troops.
k) The witness Felber stated clearly in his interrogation of 11 August the consequences of this fact, as to the responsibility for retaliatory measures: "Apart from this, Speidel had, as much as I know, really nothing to do with retaliatory measures, as, unlike me, he had almost no troops.
The competence and responsibility of the military commander Greece may, therefore, not be judged by analogy with conditions in Serbia, as the troop command tasks are lacking. Facts which may apply to Serbia, cannot be applied to the Military Commander Greece.
General Felber rightly called the Military Commander Greece a "torso" and added: "A big title and tasks which sound very good". Something, which was actually quite unimportant, had to be made to lock like something big." The reasons for this opinion are obvious. These reasons have to be taken in consideration at the examination of the question whether or not the incidents compiled in the tables of the Speidel -- exhibit 30 took place under the command and authority of General Speidel. It is not always easy to understand the chain of command in the German army. The question may also be raised, why conditions in Serbia are to be judged differently from conditions in Greece. I believe, however, that I have explained these matters sufficiently and that the reasons which I have given do not permit any doubt of the fact that General Speidel rightly rejects the responsibility for incidents, in regard to which he had no authority and on which he, therefore, did not have the slightest influence.
The defense is not able to refer to the English and American case law, as the corresponding literature and decisions are not available. I refer, therefore, only to a passage of the judgment of the American Military Tribunal II in the case of the United States of America against Field Marshal Erhard Milch.
I would like to recommend to the judicial notice of the Court the statements on this page and I am now turning to Count II of the Indictment on the next page:
In No. 7 of the indictment ail defendants are changed with the wanton destruction of cities and villages. The individual cases mentioned under no. 9 a -- p mention not a single incident which has any connection with General Speidel. During the adducing of evidence by the prosecution, there was also no incriminating document submitted, in this connection. I therefore do not have to discuss this count of the indictment.
Count 3 of the indictment General Speidel is charged with the carrying-out and transmitting of the so-called commissar order and the so-called commando order.
It has already been stated here repeatedly, that the commissar order was intended exclusively for the Eastern front and not for the South Eastern zone. In June 1941, when the commissar order was given, General Speidel was chief of the German Luftwaffe mission in Roumania.
My client did not participate in the German offensive against the Soviet Union; neither was he ever active in the East. He has never received the commissar order. This excludes, also, a transmitting of the order.
General Speidel received the so-called commando order. He did, however, not carry it out, nor did he transmit it. Speidel-exhibit 10 mentions a British commando which had been captured. All members of the commando were treated as POW's and were transferred to a POW camp in Germany.
General Speidel stated in direct examination the reasons which decided him not to transmit the commando order. At the time, when the commando order was issued, he had under his command only regional defense battalions which were charged with guard duties, and supply units. Besides, General Speidel had no battle order; he, therefore, believed that he could assume the responsibility for not transmitting the commando order. He did not even transmit the commando order to the 11th Luftwaffe field division, when he was charged with its command, as the commander of that division, Major General Drum stated under oath.
General Eisenbach also declared under oath and in an affidavit to that effect that he has seen neither the commissar order nor the commando order at the Feldkommandanturen Korinth and Athens. General Speidel also never talked to him about these orders.
I want to point out that also in this connection there is not the slightest fact which would prove the correctness of the charges of the prosecution.
Count 4 of the indictment Under Paragraph 14 of the indictment, all defendants are charged with participation in murders, tortures, systematic terror, confining in concentration camps, arbitrary forced labor, deportation of the civilian population.
The individual cases under Paragraphs 15 a - g contain nothing which could incriminate General Speidel.
I want to state the following, in regard to the evidence submitted by the prosecution during their case in chief.
1.) Deportation of workers.
The IMT judgment states, and I quote:
"Hitler appointed Sauckel on 21 March 1942 as plenipotentiary for labor allocation with full authority to centralize under a unified control the allocation of all available labor forces, including workers and prisoners-of-war recruited for work in foreign countries. Saukel was instructed to act within the scope of the Four Year Plan, and on 27 March 1942 Goering in his capacity as Commissioner for the Four Year Plan, issued a decree which transferred his departments for labor allocation to Saukel, On 30 September 1942, Hitler gave Saukel full power to appoint commissioners in the various occupied territories and to arrange for all necessary measures for the carrying-out of the order of 21 March 1943."
Therefore, Saukel had become the head of all labor allocation in the occupied territories. Saukel was, however, placed outside of the military and military administration hierarchy.
The IMT judgment states furthermore: "Based on this order, Saukel's commissioners procured the workers, with the assistance of the police authorities of the occupied territories and sent them to Germany".
It follows from these findings of the IMT judgment that the labor recruiting was the exclusive task of Sauckel and of his commissioners. These findings do not ever speak of a subordination of these commissioners to the military commanders, neither of a participation of the military commander; neither could the prosecution produce a single document which would prove participation of any kind of the defendant Speidel in his capacity as military commander. Nor could it produce any order by Speidel, which refers to the labor recruiting. The prosecution itself submits, however, an order which states clearly that the military commander had nothing to do with such -- or similar authorities and offices. This is Prosecution Exhibit 297.
Sauckel's commissioners are doubtlessly "offices outside of the Wehrmacht". These offices are subordinated to the commander-in-chief South East, but in a restricted manner only, because the authority of the highest Reich offices to issue technical directives is not touched by this subordination." This makes it clear that:
a) (a positive factor) Saukel's commissioners received their technical directives in regard to labor recruiting from Saukel only and were responsible only to him.
b) (a negative factor) -- that the military commander had no authority to issue technical directives.
Thus the prosecution has proven by its own documents that the military commander had no authority of command in regard to the labor recruiting offices.
Beyond this, the defense submitted also a number of exhibits supporting and positively confirming the fact that Saukel's labor recruiting was outside of Speidel's sphere of activity.
Finally, there is another fact of decisive importance; it is the return to Germany of foreign workers on leave, which follows from documents submitted by the prosecution.
If only one of these Greek workers had been dissatisfied with the conditions under which he worked in Germany, he would have had a 100 times the opportunity during his leave to escape an unpleasant duty by fleeing to the partisans. These men on leave did, however, not do that. They preferred to return to their place of work.
The prosecution has referred to the following documents: concerning the recruiting of 2,200 workers for the General of the transport service.
Article 52 of the Hague Convention on Land Warfare proclaims the right of the occupying power to request services from the population; this was recognized by the IMT and I quote: "The rules concerning forced labor by the inhabitants of the occupied territories are stated in Article 52 of the Hague Convention." There are only two restructions to this right of the occupying authority:
1.) The requested services must correspond with the resources of the country;
2.) The population may not be forced to war-like acts against its country.
There is no doubt that the 2,200 transport workers were recruited for authorized purposes and requirements of the occupation troops. This make sit obvious that the registration and allocation both were voluntary. Besides, this was an order which was never carried out.
(Statement and testimony by Geitner and direct examination Speidel).
And then Prosecution refers to NOKW-692, Exhibit 422, against General Speidel.
Firsts, there is no evidence that the measure was ordered by the Military Commander Greece. It is also not clearly stated what the forced measure consisted of. There are forced measures in existence which are recognized by the law. It cannot be easily understood for which decisive reasons the passage of the submitted document must be considered as incriminating evidence against General Speidel.