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.
At that time when V. Geitner read the opinion of the legal advisors of the Commander for Serbia he was perhaps especially impressed by one fact; namely, that this opinion had expressly recognized the exception in the case of a few, specific band units, for example, the Cetniks in Montenegro; for carefully considered reasons they were granted the status of a regular enemy army. With good reason Geitner could and must tell himself that this character would certainly have been ascribed to the other partisan units also if the investigations which had been carried out had led to the conclusion that their recognition as regular army troops could also be defended. Under such circumstances it did not seem possible to Chief of Staff V. Geitner that there could be even the slightest doubt in this direction, especially since the Allies denied recognition to the Tito government until well into 1944, although nevertheless it would have been to the interest of the Allies to officially recognize the partisan units of Tito and the other leaders in the Balkans as a regular army as soon as possible.
Even if a German general in the Balkans, contrary to the strict rule against this, had listened to foreign radio broadcasts at that time, then even in May 1944 at the best he would have heard a parliamentary speech by the then British Prime Minister Winston Churchill, who declared at the time that he would henceforth support Tito and not Mihailovic who had stopped fighting; but even this speech of Churchill's still fell short of a recognition of Tito's government in international Law.
And moreover it must have been clear to every German general in spite of this that the recognition of a hostile government in international law and the recognition of hostile units as a regular army could not possibly be a matter to be decided by any individual German general for his own command area, but rather was a decision of the greatest political importance which could only be pronounced by those in charge of political matters on his staff, who, moreover, probably would not have acted independently in such a matter either, but would also have listened to the opinions of the governments who were allied with Germany at that time. Consequently, if one grants the German soldier of the Second World War the right to regard clear and unequivocal orders issued by his commander in chief, orders to be sure, concerning purely military matters and with military aims, if one grants him the right to regard such orders as lawful- unless he could clearly perceive that they are pursuing a criminal aim, that is, "have a crime in view", then surely that is not an exception which is made only in favor of German soldier. On the contrary, I believe that this will be the case throughout the entire world. In the case of the United States, for example, its Chief of Staff published the Rules of Land Warfare in 1940. They contain very trenchant provisions, such as, for example, the admissibility of killing hostages or carrying hostages along on locomotives or burning down of villages. One cannot very well imagine, now, that a colonel in the American Army, especially if he is not a lawyer, would think of checking the admissibility of these Rules of Land Warfare, regarded by him as official, or having it checked.
This idea would not occur to him even if the title page did not expressly carry the additional line "Prepared under direction of the Judge Advocate General". For, in conclusion, it is perfectly obvious that military headquarters has any basic orders checked in advance by its legal department before it sends out its directives to the field units.
The soldier of any army can demand and expect that the supreme command will at least be conscientious enough and have enough interest in its subordinates not to bring its own soldier into the danger of later being brought to trial as murderers because of war crimes, as reward for their loyal obedience.
However, no person in America would think of trying to accuse or punish an American soldier as a war criminal if he had guided himself by the Rules of Land Warfare and applied them in practice. However, what is right for an officer of the Allies can also be claimed by an officer of the former German Wehrmacht. If the order issued by the supreme central authority violated national law or international law then this central authority and its staff can be called to account. However, one cannot burden a subordinate executive agency with this responsibility, an agency which is bound by military obedience, especially in wartime and above all towards its supreme judicial authority, and has even sworn a solemn oath, the military oath of allegiance, to observe this obedience.
For in questions of military obedience too there is probably also an international practice of the same kind in all armies, namely, that the subordinate has to obey the order of his military superior and that disobedience to the military order of this superior will result in very heavy punishment. Even American law provides death as a penalty for this, or any other penalty which may be deemed appropriate by military law. This is expressly stated in Art. 64 and 75 of the "Manual for Courts-Martial of the U.S. Army", which was published in 1928 and republished in 1943. These American service regulations, to be sure, permit disobedience to a military order to a considerably greater extent than does Par. 47 of the German Military Penal Code. American criminal law permits the disobeying of any orders which cannot be construed as a "lawful command", whereas German law only permits the disobeying of any military order the purpose of which is the commission of a crime." Accordingly, the possibility of disregarding an order by his superior was open to the German soldier only to a considerably narrower extent than was probably there case for the American soldier.
It would lead us too far from the subject here to investigate in detail the question as to what the German legislator had in mind in the abovementioned provision of par. 47. For it is perfectly obvious that it could never have occurred to a soldier so devoted to his oath of allegiance as was General V. Geitner that his Supreme War Lord and the latter's advisors would have issued these general orders for reprisal measures only for the purpose of "aiming at" a crime.
Such an intention on the part of his Supreme War Lord, however, would have been something completely inconceivable to any honorable soldier. It would have broken all the traditions of the honorable military profession by which just such a soldier as Geitner's sort lived. On some occasion one or another of the defendants in this trial was asked whether he did not have lawyers available whom he could have questioned concerning the admissibility, for example, of shooting hostages.
On the staff to which the defendant V. Geitner belonged any such questioning of lawyers would have really been to no purpose for the reason that, as was well known, a highly qualified government lawyer, a certain 1st Lieutenant Dr. Bode, was entrusted with the handling of such matters on the staff of the Commander for Serbia in his capacity as "ol Officer" and also because the administrative staff, which had jurisdiction over such measures, was composed of skilled lawyers, but never did any of them express a legal objection concerning their admissibility. It is, therefore, mysterious in just what way the idea should have occurred to V. Geitner, who was not a lawyer, that he would perhaps make himself criminally responsible for if he did not expressly ask for a legal opinion about matters concerning the legal propriety of which even all the lawyers in the government offices above him never expressed any misgivings.
Still, it is to the credit of the sense of duty and responsibility of the Defendant V. Geitner, that we learn that, to make it quite sure, he even asked a jurist for his legal opinion and was told by him that such reprisals were absolutely permissible. But let us assume that it would be compatible with American opinion for the chief of staff of an army corps to request such a legal opinion. Whom might he have approached? Supposing that the army corps in question had received a concise repeated order by the American-Chief of General Staff to proceed to the seizure of hostages and the shooting of hostages, and the curious idea occurred to the Chief of Staff of the Army Corps to ask the Chief of the General Staff of the American Army in person, whether or not that order issued by himself was permissible from the point of view of international law, and whether it was not a crime against international law! The answer, if it were given at all, could not possibly be, at best, anything but a reference to the passages of the rules of land warfare dealing with that question and an instruction to the effect that, according to the plain provisions of these rules of warfare, the killing of hostages and their transportation on railway engines was quite obviously permissible. There is no doubt that the supreme legal authority in this field would take an identical point of view, i.e. the Judge Advocate General, whose approval of the above mentioned rules had already been stated on the title-sheet. But if we even go farther and assume the absurd case that V. Geitner would, in 1942, have had the possibility of asking the Prosecution of the American Military Tribunal No. V of the year 1947 for their legal opinion, what would have been the answer to his question? They could not have helped confirming him that the Hague Rules of Land Warfare do on principle not contain any provisions referring to the question of hostages; although the question of hostages had become a burning one for decades; for the rest they would only have been able to tell him and I quote, "the American manual is a trifle more ambiguous with regard to hostages than the British manual", end of quotation, (which, incidentally,) considers the taking of hostages only as and I quote:
"not recommendable practice". And states in subsection 464, that, quote: "it appeared as though in certain cases the taking of hostages was justified," end of quote; the answer of the Prosecution would, however, not be able to conceal that the American manual, and I quote: "ambiguous, if not even inconsistent........to put hostages on an equal footing with prisoners of war would result in a deplorable confusion in the Rules of Land Warfare, considering the fact that the killing of hostages is explicitly permitted in these rules," end of quotation.
Such an information would be wrong, it is true; for the American manual declared the taking as well as the killing of hostages to be absolutely permissible, and not less so reprisals. This official view of American Military Law has been maintained until this day, although for years it has been contended that such measures were not permissible according to international law, if they were carried out on the part of the Germans. But if such measures are permissible to the American Army, international law recognizes them so justified for all states.
The Prosecution thinks to be able to evade that dilemma by referring to the "American Army Practice". But it may well be doubted that army practice has really done without the means of taking hostages, and possibly also that of killing hostages. For the witness Wollny testified under oath that in the village of Gorenzen there were printed bills of the US Forces posted threatening to shoot hostages in the ration of 1 : 200. Besides, a poster was submitted by the Defense according to which the killing of hostages was threatened by the French occupation forces in the ratio of 1 : 10. The municipal council of Berlin which is not only supervised by the Soviets, but is in office under the authority of the whole Control Council, announced on 31 May 1945 in its Official Gazette that each act of terror would be atoned for by 50 guiltless former members of the Nazi party, end of quotation.
The French occupation authorities had on 24 April 1945 a respected inhabitants of Reutlingen, who were in no way implicated, shot for a French soldier assassinated by an unknown person, and threatened with, quote "a new war action against the village", end of quotation, in case the incident was repeated; American troops set on 21 April 1945 the village of Pfeffertshofen with the exception of one farm - on fire as a reprisal measure for an American soldier killed in an encounter with airborne troops, so that the village was completely burnt down but for one house. These are only a few instances which were clearly proved. They show that the idea of taking hostages and shooting hostages was in no way a peculiarity of the German army; other armies amples quoted show that also the practice of the Allied Forces followed the teaching given by the American Rule of Land Warfare in the past as well as to-day.
This, even if V. Geitner had had the possibility to ask the opposing party for an authentic information, he would never have arrived at the conclusion that reprisal measures were repudiated by international law, as it is in force, as not permissible. On the contrary, he would have received the confirmation that they were absolutely permissible according to American opinion, because in times of war it is impossible to do without them, if the restiveness of the civilian population compels to apply them.
Thus, it is impossible to conclude that a nonjurist, like Geitner, had necessarily to realize from the beginning, or would have come to realize in the course of time, that the use of reprisal measures as he had found them in existence in Serbia for a long time past, was something unlawful, and that his superiors, whom he knew and respected as honorable and throughout humanely thinking officers, would lend themselves to the commission of the most serious crimes against international law.
2.) However: for the Case of V. Geitner all these considerations do not become practical.
For V. Geitner was in Serbia all the time active only as Chief of the General Staff of the Commanding General in that area, resp. of the Military Commander; according to German military usage his authority and the limits of his potential sphere of action were thereby clearly and unambiguously defined. The Chief of General Staff does, according to German military law, not wield any power of command, nor has he any judicial authority. Heis always only the first assistant of: is commander. Heis only entitled to advise his commander; he cannot take any decision as a chief of staff. The orders which are then issued to the troops are exclusively orders of the Commander; this man alone bears the exclusive responsibility for them.
The Defendant V. Geitner has no knowledge of the way the authority of command and the responsibilities of the Chief of General Staff are regulated in other armies. In the American Army it seems to be just the same as in the German Wehrmacht. For in the hearing on 26 November 1947 the Prosecutor reproached General Lanz for the reason that the Chief of the Italian General Staff Gandin had been executed although as a Chief of the General Staff he had clearly no authority of command. It is astonishing that, in relation to Italy, it is intended to condemn the shooting of a Chief of Staff, although he had taken part in an obvious mutiny, for the reason that as a Chief of Staff he had no authority of command, and consequently no responsibility, whereas a German Chief of Staff shall be burdened with this responsibility, although the contrary is obvious. For the principle that the responsibility is borne exclusively by the commander rather than by the Chief of Staff has been laid down and expressed without any ambiguity in the official service manual for the Service in the General Staff in War. It must be added that since 1938 this principle is in conformity with the general conception and practice of the German Wehrmacht; until 1938 the Chief of the General Staff was, if his opinion dissented from the decision taken by by the commander, entitled to lay down his dissenting opinion in the files; since the new regulation came into force in 1938, he was no longer entitled even to do so.
There cannot be any doubt about that regulation, since it has been confirmed by all the witnesses heard on this point, particularly by the former Chief of the General Staff of the German Army, General Halder who in view of his former service position ought to be able to give the most reliable information about this point. The same view was taken by the commander of the Defendant V. Geitner, namely by General Felber, when heard as a witness in the trial on 11, 12 and 13 August 1947. Confirmation of this legal position out of his mouth has the greater weight since General Felber did, at the same time, assume full responsibility for all the orders issued by himself, without any exception. Surely he would jot have done so if, by a true statement of the facts, he had been able to exculpate himself by passing at least part of the guilt he is charged with, on to his Chief of Staff. Felber rightly emphasized that his Chief of Staff bears no responsibility whatsoever for the reprisal orders of his commander. This man has, besides, no authority of command and consequently the assertion in the Prosecution Brief of Law of 19 November 1947, that the SS-Grrppenfuehrer Meyszner "was subordinated to the Commanding General in Serbia (Bader and Geitner) and to the Military Commander South-East (Felmy, correctly Felber, and Geitner)", is suite incorrect. Not less wrong is the assertion made to the effect that "the 718th Inf. Div. of Brigadier General Fortner was subordinated to the Commanding General in Serbia (Bader and Geiner)"; this applies as well to the next paragraph but one that General Lentschar donated to the Plenipotentiary General Commanding in Serbia (Bader and Geitner)". Those subordinations - which in the Case of Meyszner was incidentally purely personal one-applied only in relation to the commanders (Bader and Felber), but certainly never in relation to the Chief of Staff (V. Geitner), who undoubtedly had neither authority of command nor jurisdiction, nor the right of inspection as regards the commanders and the units which were subordinated to his commander.