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.
It is to the credit of a conscientious judge who is only responsible to his conscience, to acknowledge an error which may have occurred in a precedent. In this direction I point to the unanimous decision of the Nuernberg Tribunals concerning the question of conspiracy. As it is known, the International Military Tribunal, in its verdicts of 30 September and 1 October 1946, has found that the question of conspiracy is to be answered in the affirmative. In spite of this precedent all American Tribunals in Nuernberg, in their decisions of 11 and 18 July 1947, have taken a contrary view and ruled out the conspiracy. There is nothing in the way for the present Tribunal to examine independently the previous sentences pronounced in connection with the question of applicability of the Geneva Convention and to rule out their views, all the more because of the fact that these precedents were evidently determined by a very slight majority to the disadvantage of the defendants of that time. I state: To the disadvantage of the defendants of that time. It is evidently the purpose of these provisions of the Geneva Convention to entrust the decision against prisoners of war to a court which is composed of s o l d i e r s, that is of judges who, although having previously been the enemies of the accused soldiers, now, however, feel as their comrades, of judges who themselves served in the war and by their own experience got to know the war, of judges who for that reason have a special understanding for the necessities and particularities of warfare, who can imagine the situation which induced an officer to take those measures or issue those orders for which he is now taken to account.
If one attains a clear picture about the reasons why the Geneva Convention has entrusted a mere court martial, composed of officers, with the judicature of prisoners of war, then one cannot have any doubt about the fact that these motives are indeed particularly true in this case: If, for instance, a prisoner of war, following his capture, commits an ordinary theft or murders a guard or is found guilty of something similar, one could in such a simple constituted case even more easily come to the conclusion that the rights of the prisoner of war would also be then properly protected if a civil court would decide about this. For the passing of judgment on such matters no military knowledge and war experience would indeed be necessary. Nevertheless, according to the Geneva Convention, only a court martial and not a civil court could make the decisions even in such a simple case.
The case in question, however, offers quite particular difficulties which are difficulties of a nature as they may have been in the very minds of the founders of the Geneva Convention: The accused generals in this case are charged with having carried out the military orders of their superiors in the course of the most embittered war and in a desperate emergency situation; they are expected not to have carried out these orders and ought to have opposed them because these orders were in violation of international law. The charge raised against them is, that they had not found the proper solution in the grave conflict of conscience between obedience on the one hand and humanity on the other. The judgment about those questions requires a particular experience of military matters and views, especially in a situation where the unusual conditions in the course of a total war are in question.
And this experience to a special degree has indeed the officer who himself was in the war and by his own experience got to know the war and who himself may have been once in the same situation from which the accused soldier is said not to have found the proper way out. That is the reason why the Geneva Convention prescribes the jurisdiction of court martials against all prisoners of war. They are to be protected against miscarriages of justice which might arise as a result of the inability of the civilian judge to familiarize himself with military matters and situations.
This proves at the same time that the reference of the defendants to the Geneva Convention by no means originates from a distrust of the love of justice and the impartiality of a civil court. It is not the Generals, under indictment here, who have created the Geneva Convention but it was the work of the community of nations standing above the parties; it was this community of nations which in such a case declared a court, composed of participants in the war, as more suitable than a civil court and it is the sound and unalterable right of the defendants to insist on the privileges which they are entitled to according to international law, even if, on the basis of the up till now proceedings of their cases, they feel the deepest respect for the civil court here in session and its way of administration of justice and willingly recognize its correctness and fairness.
All these findings must necessarily lead to the result that the court, appealed to by the Prosecution, lacks jurisdiction and is to surrender the case to an American court martial in accordance with the provisions of the Geneva Convention. This view evidently was shared by the American authorities themselves up to the beginning of the present trial. Otherwise, it would not have been necessary, prior to the arraignment of these generals, to release them formally from the status of ordinary convicts.
This treatment of the case was evidently based on the quite wrong assumption that, only through the release from the status of prisoners of war, the basis for the jurisdiction of a civil court was to be established.
Moreover, it would not be wrong to assume that the mere choice of the expression "Military Tribunal" is to be traced to the conception that a Court Martial in tho meaning of the Geneva Convention and in the sense of the American articles of war had to be established which was to try such "war crimes". A court, however, in which only the defendants are members of the military can hardly be called a "Military Tribunal". This designation can only be given to a court in which the judges and prosecutors belong to the military profession also.
It is not known for what reason three of the victor powers deviated from this view already during the proceedings of the International Military Tribunal and have appointed civilian judges who perhaps have never been soldiers. However, in a trial which is exclusively directed against military personnel and is to pass judgement about military orders exclusively, one can by no means overlook the question as to the jurisdiction of a C o u r t M a r t i a l.
This, your Honors, brings me to the specific consideration of the case of von Geitner.
I. The defendant, Brigadier General v. Geitner, constitutes in many respects an exceptional case on the defendant's bench:
Although with respect to age he is one of the oldest defendants, he nevertheless had by far the lowest rank among all defendants; in the second World War he advanced only to the rank of Brigadier General that is the lowest rank among general officers, whereas all other defendants have at least advanced to the rank of a commanding general. Furthermore: he is the only one (aside from General Foertsch) who was not an independent commander but was always merely a general staff officer; he is furthermore, the only one on trial as a "Substitute" for his commanders and, last not least:
Among all professional officers he is the only reserve officer.
This distinction has a certain significance for the judgement of the facts: It is probably the case in all armies that the reserve officer in many, if not in all cases, ranks behind the professional officer and in general does not have his authority, at least not in purely military matters. For here the consequences of this fact must necessarily mean that the professional officer is an expert, whereas the reserve officer has to exercise a military profession only for the duration of the war, a profession which he does not practice in peace time; the greater technical knowledge of military matters and the familiarity of the professional officer with all acute phases and questions of military service gives him always a greater superiority as compared with the reserve officer. Incidentally, this secondary position of the reserve officer found its outward expression in the fact that, during the second World War, the latter did not receive any higher decoration (neither the knight's cross of the iron cross nor the German Cross in gold), although he was declared by his superiors, especially by the Chief of the General Staff, Halder, to be outstandingly qualified.
All this is of considerable importance in the case of v. Geitner; For the Prosecution has endeavoured, especially in the case Geitner to put the case in such a light as if Geitner to some extent had been the bearer and the soul of a system which had worked in Serbia with all kinds of breaches of international law, with reprisal measures, shooting of hostages, burnings and destructions for the purpose of exterminating or at least decimating the Serbian people, of destroying the Serbian economy and to have the Serbian nation disappear from being. So many accusations, so many false statements. The German generals in the Balkans have never lent themselves to the execution of such a plan; if individual SS-leaders and SS-organizations have actually played with such an idea, it was the generals who used all their influence in order to help the Serbian people to overcome the period of occupation, which obviously causes hardships in any case, and to retain for the German Wehrmacht its reputation of chivalry and soldierly decency.
However, particularly in as far as the defendant v. Geitner is concerned who incidentally became a brigadier general as late as 1944, he already found this so-called system, of which he is alleged to have been the soul or even the originator, in Serbia when fate sent him to Belgrade in 1942. Measures of reprisal and similar regulations existed already in Serbia prior to his arrival. Moreover, persecutions of Communists and Jews had already taken place there previously and "concentration camps" allegedly were in existence. (The concentration camps, however, were not of that notorious kind as they are known at present.) This alleged "system" had already existed in Belgrade for a long time past; the respective orders had been issued in the Balkans by Hitler and the OKW long before and had been dictated to the commanders in the Balkans by their higher authorities. Moreover, the order, issued by higher authorities, for cooperation with the Higher-SS and Police Chief and with the SD which was subordinated to the latter, existed already before Geitner's time. By order of the Reichsfuehrer-SS, Himmler, the Higher SS and Police Chief was to "fight the insurgents with the greatest intensity by using brutal measures of the police and secret police" That is Himmler's order to the Higher SS and Police Leader.
JUDGE BURKE: We will declare a recess at this time until onethirty.
(A recess was taken until 1330 hours.)
THE MARSHAL: Persons in the Courtroom please take their seats.
The Tribunal is again in session.
PRESIDING JUDGE BURKE: You may proceed, Dr. Sauter.
Dr. SAUTER: I shall now continue dealing with the case of von Geitner. I had stopped on page 22 and I continue.
Already long before Geitner's arrival in Belgrade the German commanders in the Balkans conducted a war of attrition not only against the revolting population and against the partisan organizations but also against their own superiors, against Hitler and his staff of assistants. These German commanders in the Balkans had been standing between two mill-stones ever since the German occupation of Serbia. By higher authorities they were held responsible if they did not succeed in maintaining order and tranquillity, one order from above followed the other and if they failed to carry out these orders, they themselves were facing death or the concentration camp. The acts of terror, on the other hand, piled up beyond imagination, dozens of acts of sabotage were reported daily, hundreds, thousands of German soldiers were treacherously murdered. The commanders had to realize that without counter-measures they were in no position to maintain order and tranquillity in the country which obviously was their most important task, and on the other hand their feeling of humanity and sense of justice was struggling against making innocent people suffer for the heinous crimes of misled fanatics.
II. Thus, Curt Ritter von Geitner got into this immensely difficult situation when in the summer of 1942 he was transferred as chief of the general staff to the staff of the Commanding General in Serbia.
Geitner was in no way prepared or previously trained for this new office. Since 1919 he had only followed his civilian profession as a factory owner and had lost all contact with military affairs.
When in 1936, then, he became a reserve officer in the new German Wehrmacht his provisional training was restricted to the command of a battalion and at the most of a regiment; on the other hand, he received no training in the command of larger troop units in the new German Army.
When he was detailed to the General Staff he first had to reassimilate this. Besides this, his transfer to the General Staff was made entirely against his will and in no way corresponded to his own inclinations; before the beginning of the war, as the witness, Chief of General Staff Halder, reported, and again in 1939 he requested not to be assigned to the General Staff. He considered himself too old to serve as an assistant of a Commander, as the General Staff officer always is, under comparatively younger commanders. Instead of this he wanted to serve as an independent field commander, even if of a fairly small unit. However, the absolute propriety of his conduct was well known, value was placed on his incorruptible sense of justice, his fanatical love of the truth and his sense of duty. And so he went to the General Staff, which brought him into an entirely new occupational environment, with which he, the factory owner, first gradually had to familiarize himself. These facts alone reveal several points of view which even in the opinion of the Prosecution are worthy of consideration in Geitner's case. Prof. Glueck, whom it recognizes to be an expert in international law, requires, for example, that the following factors be taken into consideration in favor of an accused soldier: his age, his military rank, the extent of the instruction he has received in the law and customs of war, the type of manual of rules with which he was provided, the extent of his knowledge of the law, the dangerousness of situation in which a soldier obeys an order, his ignorance of its unlawfulness, the initiative and intelligence employed in carrying it out, the dangers which might follow from disobedience, the experience subordinate and many other circumstances by which the guilt and responsibility of a defendant can be apportioned in accordance with criminal law."
Now, let Geitner's position in Belgrade, when he went there in 1943, be considered from this point of view.
At that time reprisal measures and similar matters were something absolutely new to him; such measures had not existed in his earlier spheres of activity from 1939 to 1942 and he had not heard anything at all about them. Geitner instinctively disapproved of them. However, he did not do this, for example, because he considered them contrary to international law; he brought with him to his new office the ideas of a decent and chivalrous tradition. He derived his conception of the supreme military headquarters and its activity from the First World War, after he was convinced that the supreme army command had been in the hands of first-class professionals, conscious of their responsibility. He believed that he could transfer the confidence which he reposed in them directly to the OKW. He himself had always been a man with a great sense of responsibility and it was a matter of course for him to assume that this characteristic was also possessed by those holding such a high rank in the service. He, who had always been only a soldier in comparatively low service grades, had never had any opportunity to form his own impression of his supreme military superiors, such as Field Marshal Keitel and General Jodl; it must have seemed incomprensible to him that soldiers of the highest rank, who held the most important positions in the service, could improperly employ their subordinates to execute orders which would turn the credulous subordinates into criminals, into murderers. Not being a lawyers, the thought never occurred to him that things which were ordered by the highest authority in the State would violate the law; on the contrary, he considered it as a matter of course that the OKW in particular, if it issued such general orders, had first had them checked by its specialists in international law, and he assumed the same thing if the Army Group forwarded orders of such importance to the field units. It would have seemed completely absurd to him to have been supposed to assume that his Commander in Chief, deliberately or through negligence, passed on an order or a directive to Corps Headquarters and all the field units which could have been questioned in any way as contrary to international law.
With reference to this, the proceedings in this trial have provided a brilliant example which is typical of the foresight which the defendant V. Geitner and his headquarters exercised in such questions. In February 1943 the OKH (High Command of the Army) had sent out a memorandum with detailed explanations to the commanders concerned, which was based on a report by the witness Wellny who was examined here, and which on the basis of the material submitted to the OKH discussed in the most thorough way the question whether the Serbian partisan units were to be judged as a regular army or as insurgents. A few months later, in autumn 1943, the OKH forwarded to the "Commanding General and Commander in Serbia" for his comment the inquiry of a German military judge about the standing in international of the Draja Mihailovic bands. Geitner would have doubtless had the right to refer to the point of view expressed in the memorandum of his staff member Wommny and the OKH of 9/2/1943; for indeed this memorandum had been issued only a few months before. However, V. Geitner, with his well-known, meticulous conscientiousness, did not do this. In consideration of the importance which his soldierly feelings ascribed to this specific problem he had all the specialists in his office send in detailed opinions based on the knowledge which they had acquired along these lines. On the basis of what was obviously a very conscientious judgment of all the points of view and records coming under consideration the specialists at that time reached the unanimous conclusion that the partisan units in the Balkans could not be judged as regular soldiers within the meaning of the Hague Rules of Land Warfare, but rather as franctireurs within the meaning of international law. Naturally, then, the Commander of Serbia likewise had to adopt the point of view of the OKH, irrespective of whether reprisal measures and the like seemed undesirable to him from a humane point of view or not.
Concerning their legal admissibility he could no longer had any doubts. This applied to an even greater extent to his Chief of General Staff, V. Geitner, who as simple reserve officer and not a lawyer had been a complete stranger to these problems up to the time of his transfer to Serbia, and who as a newcomer holding a position without any power of command, could not even think of placing himself in diametrical opposition to a practice which had not only been ordered by the Supreme Command of the Army and approved by its Legal Department, but which was also recognized as lawful by all the specialists serving in Serbia on the basis of the abundant evidence available there.