Any fight for the army hospitals had to be avoided since they were wooden buildings. Under the given circumstances taking of hostages was doubtlessly permissible under international law. The purpose was achieved and the hostages were released again. The defendant discussed the fact of this taking of hostages during the cross examination. If the prosecution believes to find a contradiction between this statement, which describes the actual fact of the taking of hostages and its purpose, and the documents exhibits 607 and 608, presented afterwards, a comparison between this testimony and the two documents will reveal the opposite.
With regard to the number of hostages, one cannot ask the defendant to remember it exactly, especially since the two exhibits 607 and 608 state two different figures (120 and 300). To draw from this the conclusion that it proves lack of credibility can only be interpreted as a result of the subjective attitude of the prosecution. The testimony following exhibits 607 and 608 is in the English Transcript page 5445-50.
Your Honor, the High Tribunal!
The defense based its evidence especially on the testimony of the defendant in the witness stand. Although in addition to this document and evidence brought in by witnesses have in most cases substantiated the statements made by the defendant, the personality of the defendant, his attitude towards the facts charged against him and the question of his trustworthiness ought to play an important part. For this reason I consider it necessary to make some statements concerning the person of the defendant:
In May 1932 the defendant joined the National Socialist Party. This can be explained through the conditions prevailing at that time in Austria, where the great majority of the people was looking for a way out of the unbearable conditions and did not consider the dictatorship of Dollfuss the proper means towards this goal. At that time nobody could even suspect the development the Party would take later on. When, thirteen months later the Party was dissolved in Austria, his membership ceased for good.
He never worked for the Party nor did he hold any office there, and especially, he was not illegally active after the Party had been dissolved.
At this point I would like to counter a charge made by the Prosecution, the Prosecution who suddenly, without any basis and without having stated so before, charged that the defendant Rendulic had after the Anschluss again joined the National Socialist Party. This is incorrect.
Their lack of incorrectness can be shown only from the fact alone that the defendant at that time was immediately taken over into the armed forces and, until shortly before the end of the war, members of the armed forces could not at the same time be active members of the Nazi Party. For the rest he has stated himself that he never had a desire to join the Nazi Party again.
"For the defendant as for so many others, the development of the Party was a serious disappointment, especially when he saw its damaging effects in Austria after March 1938, when the Party treated this country as if it were a newly acquired colony. The defendant recognized that the persons responsible for all the evils and abuses were the functionaries of the Party and he decided to take up the fight against them whenever the occasion would arise. He put this resolution into effect, at first in a small way and later on, when he rose to more important positions, against their most powerful and influential functionaries in Croatia, Norway, East Prussia and finally also in Austria. He exposed himself in a dangerous way through his activities. No. "Nazi General" would have acted like he did, nor would anybody who was anxious to win the favor of the Party and wanted to be furthered by it.
I also proved that the promotions of the defendant were as bad as they could be in spite of his achievements before the enemy which were a series of constant successes. The prosecution had ample opportunity to investigate the personal affairs of the defendant and arrived at the correct result in its opening statement.
One page 63 it states: "His excellent achievements during the war brought him the highest German orders and directed Hitler's attention to him and doubtlessly led to his being made the Commander of the second panzer army.
He made his own career and nobody promoted him. When, after giving up the second panzer army he led another army and three army groups, it was the tasks demanded of him were always crucially difficult, and he always brought them to a satisfactory solution. He did, however, not get any thanks, especially from the moment, when Hitler himself decided about his assignment, he did not receive any promotion, distinction or donations which were given very generously to other leaders. He, however, did not receive the slightest thing".
PRESIDING JUDGE BURKE: You still have only 7 minutes, Dr. Fritsch.
DR. FRITSCH: "If we consider his military career during the war, we find that it constitutes a series of greatest achievements and successes in the highest military leading positions, without his having received any outward recognition as did so many others. Hitler recognized his great talents and exploited him thoroughly. The Party, however, kept silent, because he had no connections there and because, on account of his fight against its functionaries it could only consider him an enemy.
At this occasion I cannot refrain from pointing out the following:
From the fact that some officers were characterized as National Socialists in their evaluation or had defined other persons as "National Socialists", the prosecution sought to draw conclusions about the National Socialist attitude of the persons judging and those judged. By mere chance, by presenting rebuttal exhibit 649, the defense has the possibility to prove the incorrectness of such conclusions. This exhibit 649 which is a printed form, lists, in the printed column for the evaluation the points about which, according to the order, the person making the evaluation will have to state his opinion.
It says there: "Value of the personality, National Socialist attitude, conduct before the enemy, achievements in the line of duty, mental and physical talents and abilities, infantry experiences, acquired when and where." Thus judgment had to be passed with regard to the attitude towards National Socialism. If this attitude would have received a negative judgment, the person who was to be judged, would, naturally, have gotten into trouble. It was, therefore, humanly understandable, if some phrases were made about his positive attitude regardless of his real attitude. If one studies the officers condemned on occasion of the attack on Hitler on 20 July 1944, one will find in the case of everyone of them a positive evaluation of their attitude towards National Socialism.
I come now to the close of my statements.
For the judgment of the offenses claimed by the prosecution, documents have been presented to the High Tribunal during the course of several months, which the prosecution has selected on the basis of probably two years of preliminary work. The defendants, on the other hand, had essentially only those documents and their own memory to refute that evidence. It is in the nature of the matter that in the case of a field of tasks like that of the defendant General RENDULIC, who fought in all theaters of war except Italy, one can impossibly prove every situation by memory. The High Tribunal will have to take this especially into consideration. The defense is convinced that inspite of this, every charge of the prosecution has been refuted by a counter-evidence, which excludes any reasonable doubt as to its correctness. Naturally this could have been done even more thoroughly and more convincingly, if the defence had had the same possibilities as the prosecution. The defense proved that this was not the case.
The necessity results that in judging the reasons and counter-reasons these difficulties too, which would never arise in a normal procedure will have especially to be considered. This is particularly important for the case of General RENDULIC, because there are only very few documents from his office and because, naturally, they have definitely been selected according to the points of view of the prosecution. The defense could base its evidence only on documents which it happened to find in other offices.
The decision rests in the hands of this High Tribunal.
That concludes my closing statement. I only ask that for the record I be permitted to see to that a rectification is made. I did not hand in my plea only in February, as it has been assumed, but I have handed it in on Saturday, 24 January, 9:00 a.m., and I received the translation only yesterday.
PRESIDING JUDGE BURKE: Very well, Dr. Fritsch; the record will so show.
We will proceed.
DR. SAUTER: (Counsel for defendants Lanz and von Geitner): Your Honors, I handed in my plea on the 26th of January 1948 for translation. Apart from that, I got the exhibit list for Geitner which the Tribunal desired and, apart from that, for the case of Geitner, I made a survey concerning the defense material which was submitted for Brigadier General v. Geinter and I handed in also a survey concerning the witnesses to which I draw the Tribunal's attention especially, because here you have in one great survey in a very clear way the whole result of the defense for Geitner.
I assume that the Tribunal will have no objection that I treat the cases Geitner and Lanz at the same time.
PRESIDING JUDGE BURKE: The Tribunal has no objection to your proceeding in that fashion.
DR. SAUTER: If it please the Tribunal;
"The good soldier in any modern army must preferably posses 3 qualities:
The first is bravery, ready at any time to sacrifice his own life in the protection of his homeland against attacks; the second is loyalty, which the soldier vows to his flag, loyalty toward his fatherland and the Head of the State, loyalty toward his military superiors and his comrades; but the third and perhaps more important is obedience, which the soldier, too, by taking his military oath solemnly swears to his flag; that obedience, which the second President of the German Reich v. Hindenburg, called the "Basis of the Wehrmacht" in figure 4 of the "Duties of the German Soldier" stated by him on 25.5.1934.
This obligation to obedience is not a particularity of the German Army; it is characteristic for the armies of all states. Montgomery for instance has declared on 26 July 1946 in Portsmouth: As a servant to the nation the Army stands above politics and that must remain so. Its devotion is for the state and it would not befit the soldier to change his devotion because of political opinion. It must be clear that an army is not a conglomeration of individuals, but a fighting weapon, formed by discipline and controlled by its leaders.
The essence of democracy is liberty, the essence of the Army is discipline! Never mind how intelligent a soldier is. The Army would desert the nation, if it were not used to obey orders instantaneously.
This obedience, by the way, is not only asked of the common soldier, but also of the supreme Commander of an army and it is interesting that, for instance, Clemenceau in his famous book "Greatness and Tragedy of Victory", Union - Deutsche Verlagsgesellschaft, raises only the one reproach against Foch, Marshal of France and supreme Commander of all Allied Armies in 1918, that of disobedience towards the political leadership. "His faith in this most important and highest duty, obedience, did not stand the test. He dud not possess the understanding for that unflinching devotion to duty, which lends greatest moral and mental firmness to the soldier."
I feel quite sure, by the way, that also the American Army would not have granted its soldiers the right to refuse an order by his General Staff or from the President of the United States as the Commander in Chief of the American Army on the ground that the order violates international law or humanity according to his personal opinion.
This solemnly sworn duty to obedience the Generals accused here have fulfilled, and therefore they are being accused, only therefore, for no other reason. The trial against the German Generals who were active in the Balkans shows the tragedy of the obedient German soldier. These generals have without exception served for 5 years abroad during the war, for 5 years these generals have fulfilled their duties under the eyes of the Serbian and Greek, the Russian and French populace; in all these countries it is known that for months these German Generals are being tried here, and still not one witness has risen to testify for the Prosecution and not one witness could be found, who could have raised any reproach against these generals, who could have accused them of acts of plunder or personal aggrandizement or of brutal acts or cruelty and the like. It is therefore a fact: the crime, with which they are charged by the Prosecution is to be found in the fact that they carried out the orders of their highest superiors.
What has brought these defendants into the dock is not any criminal way of thinking, but exclusively their obedience towards military orders of the head of a state, who under the conditions prevailing then combined a mass of power in his person, which never before would have been thought possible. Hitler was, as various Nuernberg judgements have also already recognized, not only the Commander in Chief of the whole army, but also the supreme judge and the absolute legislator. And the question around which this trial revolves, is, whether it was the duty of a German General to refuse an order coming from this all powerful head of state, even in the midst of the hardest war, and in spite of the danger thereby to lose his right and position, possibly his life. For that much must be clear at the close of this trial, even to a foreign judge, if the Prosecution were proven right in this trial, then the result would be that these generals have been sentenced to death in advance, no matter how they might have acted: Either they defied Hitler's orders during the war, then they risked then to be shot, or to get into a situation that would force the gun for suicide into their hands, or they felt bound by their oath to the flag and obeyed the orders of the Commander-in-Chief, then they risked to be hanged after the war by the Americans.
The difficulty to arrive at a just verdict under these circumstances is also heightened by various facts that cannot remain unobserved. a) It was very difficult for a German, who during the war lived in Germany, to follow and judge the development of the last 12 years. The German press and radio were not free, but forced to report only what the government wished and the way the government wanted it reported.
We know today that the information service and the propaganda in Hitler-Germany was untrue and mendacious, that the people were misled systematically and lied to and that the truth was suppressed and snuffed out. This system was the more fatal as the German people had been for years cut off from all news sources abroad and did receive no enlightenment from there. The spreading of Anti-Hitler news led into the KZ and into penal servitude, even if it occurred only within the family circle, and the listening to foreign broadcasts was threatened with barbarous penalties. Not seldom the death sentence was pronounced for that. How should the German, dwelling within his country, have learned what went on in Germany and in the world, what the real aims of the Hitler-regime were, what this system was driving at. There can be no doubt that the Hither-order No. 1, which for instance was posted in all offices of the Army and was hammered into the minds of all soldiers, meant, that nobody should learn anything unless he be officially concerned with the matter, and further, no one should learn more and not sooner than was absolutely necessary. We know from the great trial at Nuernberg that this secrecy was carried out so consistently and rigorously that for instance the Reichs Foreign Minister repeatedly received knowledge of diplomatic negotiations with countries abroad only after the treaties desired had already been concluded and it is significant, for instance, that the Chief of the German Navy learned about the invasion of Denmark on the following day through the radio. It also is well known today, on the basis of what has been revealed since the armistice, that for instance Hitler even in his political testament, which was published in January 1946, claimed: "It is untrue that I or anybody in Germany wanted war in 1939;........ I never wished a new conflict with England or much less with the United States." This was written in 1945 in the face of death by the same Hitler, of whom we know today, that for instance already at a secret conference on 23 November 1939 he declared to the highest leaders of the Army:" The resolution to strike has always been within me.
I shall attack and not capitulate." Considering this attitude of the Head of State one cannot he surprised that even high officials and Generals were not informed at all on the true aims of Hitler and never learned the most important matters and connections, although standing in high and responsible position.
Under such circumstances it is clear, how infinitely difficult it is for a foreign tribunal to form a picture here on the historical development of a foreign country and its conditions and circumstances during the last 12 years and to gain a picture that will stand before history, if even the Germans, who experienced this development here in the country, received only during the last two years, gradually and step by step, information on this development, through communications from abroad and through the statements of the Nuernberg trials.
b) For the sake of justice further, it surely is also not a favorable portent for the verdicts to be pronounced here at Nuernberg that these trials are all exposed to be pronounced here at Nuernberg that these trials are all exposed to the danger of in the last analysis assuming a political character and of being used for political purposes, as the Courts may be bent upon preventing such a development. It has been said that history is being written here in Nuernberg, objectively true history; the fate of the individual defendants is immaterial behind the necessity to open the eyes of the whole world and above all of the German people, to reveal the unvarnished truth and to give the German people the possibility to recognize the mistakes of the past and learn for the future.
But beside this aim many entertain other thoughts, namely, also to prove through these Nuernberg trials that Germany alone is guilty of the war and that the manner of German war conduct and administration was entirely criminal. This point of view has often enough been emphasized by the competent authorities.
Now it is clear that every judge belonging to the victorious nations must bring along a certain bias, even though his personal endeavour for objectivity may reach the highest degree of which a human being in such a situation and confronted with such a task is capable of. Take the practical example of the trial before us: Among other things the question must be decided here, whether the partisan units in Serbia and Greece should be recognized as regular troops or are to be judged as franctireurs. These partisan units during the second World War have fought on the side of the Allies, they have substantially contributed to their victory; the bolld which was then shed in the Balkan countries was a sacrifice for the triumph of the Allies. Nevertheless it is demanded of this judge, although he comes from the Allied camp, that he judge these heroes of liberty, who not only fought and died for Greece and Serbia, but at the same time for England, America and their ally of then and of today, Russia; that he, I say should judge these heroes of liberty today perhaps as people who in the eyes of international law had been criminals.
Furthermore, the partisan units were promoted and equipped partly by England and America, partly by Russia; only with this help could they sustain and maintain themselves; this has been proven beyond doubt in this trial. What would the Allied world now say about a judge who would consider these partisan units as bands contrary to international law and therewith would indirectly accuse his own government to have for years supported and organised unlawful bands and induced them to an illegal struggle against the occupying power?
For the human appraisal of such a question it must well be considered a matter of course that the sympathies of every judge lay with his own people and its allies and that these sympathies must be the stronger, the more valiant and valuable the struggle of these allies has been for the country of the judge, even if their way of fighting against the common enemy should not have been in harmony with the rules of international law.
Such involuntary sympathies have a doubly strong effect, when the common enemy - the German Hitler regime - has drawn the hate and the curse of the whole world upon itself, and when this common enemy has criminally brought on a catastrophe, under which today's generation and many a coming generation will have to suffer and starve, not only in Germany but also in the Allied countries. The consequence of this regime is that today the world rejects the German, hates him and despises him.
Defendants, such as for instance General V. Geitner, are surely not typical representatives of this system, they have become victims of this system themselves, but they are Germans and as such are exposed to all the prejudices which the world necessarily holds toward all Germans because it sees nothing but ruins, has heard nothing except indescribable crimes for two years and today sees only evil in Germans, forgetting completely what Germany meant to the world in earlier times and what Germany gave the world in eternal values.
The danger exists that the individual defendant who is unlucky enough to become entangled in such a trial, shall also be made responsible for the devastations that have visited the world, for the untold millions who were sacrificed to the hate of a Hitler or a Himmler, for the ocean of blood and tears in which this world of our time almost drowned.
c) The Nuernberg trials are to bring about new forms of criminal and international law. They are to lead the world towards an epoch that will be free from crimes against justice and humanity, such as we have seen all over the world in the past decades; they are to contribute to a future, happier period, where men and peoples can be free from fear and need. The responsible critic of today's situation, regardless of whether he be from Germany, one of the Allied countries or a neutral country, asks himself over and over with serious concern, whether the new development of the law is taking that course which is necessary if a higher justice is to triumph and if the world is to go on towards an age of peace and prosperity.
We demand of a just law that it shall be applied uniformly, without consideration of the person. If a law declares a certain act to be a crime, then that law must affect everyone who commits this crime. If it does not do this, it is not a good law. It creates no justice, but only injustice. It destroys the faith in impartial justice and leads to new violations of the law.
The Nuernberger trials have the historic task of punishing crimes against the peace, crimes against humanity and crimes against the laws of war; they should not atone for the crimes of this nature that were committed in the last 12 years alone, and lead them towards their well deserved punishment, but they should prevent the occurrence of such crimes in the future. The leaders of nations and their responsible co-workers should know for all the future that they cannot commit such crimes unpunished from now on; every statesman and every army commander, every official and every officer, every citizen should be made aware that the community of nations will carefully watch over justice and law, over morals and humanity.
Your Honor, we subscribe without reservations to every one of these laws. But many voices in Germany and in neutral foreign countries have asked again and again: Should all of these laws only be valid against Germany? Why are their sanctions applied only against Germans? It cannot be denied that there is a certain justification for these questions. Since war was formally outlawed, a series of further wars have been conducted all over the world. When shall the guilty ones of these wars also be called to task?
The International Military Tribunal has solemnly declared that to plan and conduct a war of aggression was the greatest possible crime that existed. Germany is held responsible because it prepared and began the 2nd World War. Where however - it is often asked - are the charges against those guilty one who prepared and launched the other wars of aggression of the last decades?
When a man like V. Geitner is accused of the most serious acts here, his sense of justice is injured if elsewhere people, who held infinitely more responsibility and who really possessed great power which they consciously or frivolously used for evil ends, not only are not punished but even remain in their positions and otherwise receive the highest honors, although they carry full responsibility for the wars of aggression which their countries conducted and won. And the community of nations even protects, it is pointed out, to all appearances, these guilty nations in their possession and use of their illegal loot which they won through such criminal wars of aggression.
Every defendant who must answer for his acts here should leave this court room with the feeling that he had been justly treated. These defendants know, however, that not only Germans committed crimes against law and humanity, but that members of other nations also did, and the defendants, ask themselves why only they, as Germans, have been accused.
In the process of the Nurnberg trials this has been explained by saying that the Potsdam Agreement pertained only to the 2nd World War and was expressly directed only against the Germans who have committed such crimes. This is undoubtedly true, but there is no satisfactory answer to the question of why the other crimes against law and humanity are not also punished, be it through the Potsdam or some other agreement, which could naturally be made at any time.
A law that does not affect all criminals, but only certain individuals, is admittedly false, and an international agreement which only punishes the one guilty on but lets the other guilty ones off scott free, cannot satisfy the sense of justice. For this demands uniforms treatment of all guilty persons without regard to person.
As all the world knows crimes have been committed, besides the ones being tried at the Nuernberg trials, and are perhaps still being committed today, which would have led to the most severe punishment if they had been brought to trial. But no charges have been made; it must be doubted whether they will ever be atoned for and whether even an attempt will be made to do so.
To find an example in this connection, who would not think of the fact that the king of Italy was never brought before a military tribunal but rather continued to reign in Italy as the recognized ruler until 1946 and then could leave his country as a free man and with royal honors after his abdication. It was he who, in his time, gave a MUSSOLINI dictatorial powers over his country, maintained him almost 25 years in this position, waged the criminal war of aggression against Abyssinia and then entered the second World War against the Allied Nations, just so that he could participate in the division of the spoils. One never heard that he disapproved of these criminal power politics, that he made a serious attempt to prevent them, that he had relinquished his high office as head of the state or that he had made an appeal for war against the criminal Fascist authorities. A man like V. GEITNER is blamed for remaining in office under an Adolf HITLER, but the son of the Italian King, who commanded half of the Italian Army and carried out MUSSOLINI's orders during the Fascist regime, he could even gain the throne after Italy's capitulation, until his own people finally chased him away. Marshal BADOGLIO was similarly favored by undeserved fortune: He was the Commander-in-Chief of the Italian armies which carried an unjustified war of aggression to Abyssinia and who had a leading position in the aggressive war against Albania. A GEITNER cannot help but ask himself if today international law only punishes the war of aggression if it is started and lost by Germany? Or one considers the emperor of Japan: He not only armed for a war of aggression against America, but he also appointed the men who took his country into the war alliance with HITLER's Germany; he sent for the generals who prepared the aggressive war against the U.S. and began it without a declaration of war or a warning, in the same way as they did in the attack on China, which today stands at the graves of millions of fallen sons and where whole provinces were destroyed.
And a GEITNER cannot understand today, at the end of a trial which taught him so many lessons, why inspite of all this, he, the little, unimportant Chief of Staff of an Army Corps in the Balkans, - is sitting here in the defendants dock at the Nuernberg trials while the Emperor of Japan still enjoys royal honors to this day.
These are only a couple of examples; they could be multiplied by many other cases of the past and the present.
And furthermore: The whole world knows, names do not need to be mentioned, of countless crimes against the basic rights of persons which have been committed everywhere in the past years, crimes without number against the most elementary laws of humanity; the American press in particular earned everlasting credit by repeatedly pointing out these atrocities in its reports during the past years, when it continuously made reports on preparations for frivolous wars of aggression which seemed to be in preparation, about expulsion of whole racial groups from house and home, of deportations of entire segments of the population to forced labor and need and misery, of bloody suppressions and mass murders of political or racial opponents, of the introduction of tyrannical governments which did not recognize the freedom of religion or of individual opinion and who debase the citizen to an animal of burden without rights or property and without happiness or hope in the future. And all this in a time when the good press of the whole world is preaching freedom and humanity, particularly that of America, when one congress of nations after another recognizes the inviolable rights of the person and the citizen anew and secures it in new constitutions and state treaties, at a time when here in Nuernberg a court is trying violations of international law which were committed by Germans during a war, on the order of a government which was recognized by the whole world and with which formal state treaties had still been made during the war.
Here in Nuernberg all good forces are working on the development of a new international law, but at the same time the actual practice brings about immense violations of justice which cannot prevented with the best intentions. Nuernberg makes efforts to create a peaceful future for all peoples, but at the same time we hear of preparations for wars, which will perhaps be prevented less through a belief in a higher right than in the fear that a 3rd World War, a total war and an atom war would destroy everything, including the "victors".
When we think of this development, then we want to return to our starting point, i.e. that international law must recognize that everyone is equal before the law and act accordingly, punishing everyone who commits such crimes, regardless of what nation he belongs to. If this does not happen, the agreements based on international law will become laws of exception. And will history later consider the verdicts based on such laws of exception as just and nonpartisan decisions? That is my question. The court is of course restricted to judging those whom the statutes bring before the court. But there is nothing to prevent a court with the authority of this tribunal from pointing out to the world that it is unjust to punish one criminal if no charge is made against another equally guilty one, and nothing can prevent an independent court that is responsible only to its own conscience from drawing the logical consequences from this inequality in the treatment of the guilty ones.
3.) There are other similar doubts which have also already been mentioned in the course of this trial.
These generals became prisoners of war after the surrender. They therefore have a claim on the rights granted prisoners of war by the Geneva Convention. It goes without saying that these rights remain valid even if, which isn't the case yet at any rate, the German Reich should disappear as a nation. The attempt has been made to claim the opposite and to "prove" the opposite; but it is regrettable even to see an attempt to touch these rights, which have been expressly guaranteed by treaties and are sanctioned by a long tradition. A Russian marshal recently said in Berlin that it behooves the victor to be generous to the vanquished enemy.
But it is the duty of the victor, the legal, political and human duty to respect the basic rights which international law guarantees to the citizens of a conquered nation. To these basic rights belong the rights the Geneva Convention allow the soldiers of a conquered nation to claim. The Allied Nations have also recognized this, in as much as they treated the captured German soldiers as "prisoners of War" up until the spring of this year.
Shortly before the beginning of this trial these German generals were formally "released" from prisoner of war captivity. This was done unjustly. None of these soldiers were guaranteed their freedom. They were and remained under arrest, and the only difference from before was that the confinement became stricter and that the soldiers were now treated as criminals instead of as prisoners of war. This obviously contradicted the spirit of the Geneva Convention, which would lose all meaning if the victor nation could, at its pleasure, end the prisoner of war status with a piece of paper and deprive soldiers who had been captured as prisoners of war of all the rights which the Geneva Convention assures them. Here it makes no difference if the individual soldier agrees to such a "release" from prisoner of war captivity, or at least does not protest against it; because if you tell a prisoner of war that he is now to be released, i.e. when you give him the idea that in the next moment he can go through the barbed wire fence to his freedom and to his wife and child, then it is only natural that every soldier will gladly accept this offer.
But when a victor nation actually does not want to grant this freedom, then it is demanded, by good faith that the soldier be told frankly and explicitly that he gains nothing by agreeing and by signing, but that he will lose everything and that his signature will sink him from a protected prisoner of war to a criminal prisoner, more or less without rights. If the soldiers had been told this, none of them would have accepted such "freedom". But the fact is that all of the soldiers accused here were left in the belief that they would gain their liberty through their release, and therefore, in the opinion of all of the defendants, such a "release" from captivity was devoid of any legal significance.
Moreover, several of these soldiers even refused to agree to such a "release" and would not give their signature, or at least emphasized that they were signing under compulsion.
The defendant, General Ritter v. GEITNER, for instance, at the time of his "release" protested verbally to the captain of the CIC in Dachau that he would lose all of his rights as a prisoner of war through such a "release", but would not gain his liberty. As an answer he received the unsatisfactory reply that it was the same for everyone, including the officers of the camps in Garmisch and Allendorf, who had no charges against them. It would undoubtedly be interesting to investigate and find out if such treatment corresponds with the intentions of the originators of the Geneva Convention, i.e., if the purpose of this agreement was really only to provide the agreed - upon protection for prisoners of war as long as it pleased the custodian nation. If today's interpretation of international law should approve of such a practice, then the protection provided for prisoners of war is entirely dependent on the good will of the custodian nation. If today's interpretation of international law should approve of such a practice, then the protection provided for prisoners of war is entirely dependent on the good will of the custodian power. Therefore we must proceed from the premise that the generals here accused are today, as before, only "prisoners of war."
This becomes very clear if you think of a case in which Germany would have attempted such a "release" of Allied prisoners of war, in order to deprive the soldiers of the protection of the Geneva Convention. No international or neutral court would recognize such a dismissal from German prisoner of war captivity as legal today. On the contrary, it would be looked upon as a new violation of recognized international law.
Therefore, the result can only be: These generals are still prisoners of war today according to the Geneva Convention.
But in that case they have the right to demand that a verdict against them "may be made only by the same court and according to the same rules as verdicts against American generals" (Article 63 Geneva Convention). Therefore only an American High Tribunal that is composed of generals of at least equal rank, has jurisdiction.
(Article 12 of American Articles of War.).
Now, to be sure, the prosecution claims that these protective measures of the Geneva Convention pertain only to crimes that are committed after capture. To support this view it appeals to the precedent established by the verdict against Yamashita and believes that it is derived from the construction of the challenged provisions of the Geneva Convention and from its context. But this view cannot be defended. From the ratio Legis, i.e. from the purpose of these treaty agreements the opposite will be seen. Nowhere in the Convention is it said or even implied that it protects the soldier only in regard to actions occurring after capture. The intention of the authors of the Geneva Convention showed clearly that a prisoner of war, when he had to appear before a court, could only be tried by a military court composed of soldiers. In this connection attention must also be called to the fact that, even in the Yamashita case the juridical views of the Jurists entrusted with the examination of this legal question, were by no means uniform. Notable voices of legal circles here at that time already expressed themselves in favor of our legal view. And if the reports received from America are correct, the opinions expressed within the Supreme Court of the United States in regard to the case of Feldmarschall Milch, as quoted by the Prosecution, were also divided throughout. It is beyond our knowledge whether this question was examined at all in the cases of R a o d e r and D o e n i t z, J o d l and K e i t e l which were likewise mentioned by the Prosecution. However, attention must be called to the fact that it would be absolutely in line with justice now to pass a contradictory verdict if a renewed examination of this difficult legal question by the Court would lead to the result that the defendants were entitled to enjoy the rights of the Geneva Convention after all.