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.
The conduct of a trial aiming at a true and just verdict ought strongly to disapprove of this most peculiar way of quotation used in the afore-cited passages of the "Prosecution Brief of Law", which is apt to give the reader a false and misleading picture of the service position of the Defendant V. Geitner - as though V. Geitner had formerly been Military Commander in Serbia. That has never been the case; V. Geitner was only Chief of Staff, and nothing else. He was not in command of any division or of any Commander, he was not in a position to give any orders to the troops or to their chiefs, he could not order any judicial proceedings, this was the exclusive prerogative of the Commanding General that is Bader and Felber.
It is just because of the peculiar way of presenting evidence on the part of the Prosecution that it is necessary to point again and again emphatically to the results of the evidence taken: it has not been proved in a single case that Geitner has caused, drafted, carried on or forwarded any allegedly unlawful order in person, that is on his own free volition. Not a single order and not a single report are in existence which have originated from Geitner's person. On the contrary, he has been indicted exclusively for acts which were the acts of his commanders.
The American Chief Prosecution has already referred in his Opening Speech to the severe criticism often directed, even in America and England, in the press and in Parliament, by civilians and soldiers particularly, against lawsuits of the kind brought against German soldiers because they carried out official orders of their superiors in purely military matters. This criticism was given rise to in particular by the verdict affecting Fieldmarshal--Kesselring, General Jodl (Chief of the Wehrmacht Operational Staff) and Fieldmarshal Keitel. It will not be possible to avoid paying close attention to this criticism, and the Tribunal called upon to decide will have to investigate whether and to what extent this criticism is well-founded. The armed Forces of a country is a weapon of the policy determined by the Government. The Armed Forces must subordinate themselves to the policy of the State. The soldier, regardless of his position and rank, must obey in all states in the world. The soldier has on principle nothing to do with politics. In Germany he never had political electoral franchise.
In how far soldiers, those at least holding the highest office, are entitled to influence policy or have even a right to be a contributory determinant in questions of state control, differs in different states. This influence has been purposely kept at a minimum in Germany since earliest times. There could be no question in Germany of a right to be a contributory determinant even in the case of the highest Generals. No doubt exists now at all that the causes of all evil in the Balkans are rooted in the political mistakes of the supreme Reich agencies. It was the soldiers accused here then who had to iron out the political idiocies of the Reich Leadership Authorities, with military means. The trial has shown sufficiently the difficult position of selfdefense they got into and how they tried without exception to master those positions to the best of their knowledge and belief. That it was not done without severe measures in view of the involved Balkan policy of the Reich Leadership and the unscrupulousness of the fanatical enemy is not their faulty Again and again, they referred to the fact that pacification of the Balkans with the measures ordered and the political methods of the supreme Reich Authorities was not possible.
What else could they do? What soldier will leave the post assigned to him in wartime? Today, however, these soldiers are supposed to atone for the faults that the responsible politicians were responsible for. False policy cannot be corrected by the soldier.
In so far as it is a question in this trial of violation of International Law and the conceptions of "crimes against humanity" and "War Crimes" codified in the Control Council Law, it seems absolutely correct that the International Law of the future makes responsible for such offenses not only the states as such but also the leading statesmen. However, a line must be drawn somewhere limiting this responsibility, If in future, every state sovereignty is not to disintegrate in impotence and disobedience, the boundary line must be situated where the individual has no direct influence on the legislative power and the management of the executive of the state. It is more difficult to draw this line in the case of the soldier -- especially if it is a question of events of war -- because this profession and its functions are established more than any other on the obligation to obedience of the subordinate. The question here is: Of what soldiers can one demand in justice that they offer resistance and no longer obey in the case of obvious or at least possible violation of International Law on the part of their Government or in the case of political errors, and of which soldiers may one no longer demand such resistance and disobedience, because one would otherwise disrupt the nature and character of all armed forces -- Discipline and obedience -- or because the latter can no longer judge whether orders are contrary to international law or not. That one calls to account soldiers holding highest authority like Keitel and Jodl because they were mixed up in the criminal policy of Hitler's government in central offices although they had the necessary general view to arrive at a correct decision, seems logical.
The same may hold for Raeder and Doenitz as Commanders in Chief of the Navy. These highest soldiers representing the head of the German Armed Forces were the direct collaborators of Hitler; they had personal access to him, they were informed by him in person, they worked out the war plans according to his directives, they could at least try to influence his decisions and direct them into the paths of a fair conduct of war. It was certainly also one of their tasks to supervise the conformity of their conduct of war with International Law and have checked it by their legal offices.
On the other hand it already seems questionable whether the Commanders in Chief of the Army Groups can be considered as sharing the responsibility especially if they, as in the case in question, repeatedly exerted themselves demonstrably to the end that the strict orders issued to them by the highest authorities, were made less severe and if frequently on their own responsibility they tempered these orders. They did not have the view from a central position that the above-named men had and we know that they too under Hitler might only learn whatever they had to know to carry out their orders and that only to the minimum extent. In their case a military authority had already been interposed between Hitler and them on which responsibility and scrutiny was incumbent and they normally had no direct influence on Hitler and the supreme Reich authorities.
It has indeed been established long since in the trials before the IMT that even the so-called conferences which Hitler held from time to time with his military leaders were in truth only "ceremonies for receiving orders" in which not even Fieldmarshals spoke but were limited to accepting the instructions and directives of Hitler as from the War Lord. Their eyes were fixed on the enemy in the first place and it is clear that for them whose tasks were purely military, in the circumstances, the conception of obedience was inevitably essentially more strict than for those occupying the central supreme positions.
The very discontent of many high military leaders with the line of policy pursued by the Reich Government and the realization that the Generals did not possess the necessary influence to bring about changes in it, may have contributed to the fact that the Generals limited themselves to their purely military tasks, in order not to incriminate themselves with the appearance of political responsibility. The further down one looks at the military ladder all the more clearly must obedience be demanded from the soldier in the first place and all the less can soldiers be made responsible for a share in violation of international law, if the latter originated in the orders of the head of the state and the military heads. What one can demand of these soldiers is that they interpret and carry out the orders given from above in such a way that these orders are robbed, insofar as possible, of their severity and injustices which are felt to be excessive. It is certain that there is not one of these defendants who did not do that to the greatest extent imaginable. Downright insubordination in war however is inconceivable for a soldier. That this is not the case in the German Armed Forces only but also in the American Armed Forces, the defendants conclude, for example, from the numerous attacks of Allied bomber squadrons on open German cities and from the dropping of atom bombs on Hiroshima and Nagasaki. There is no doubt whatsoever that shelling of open cities is forbidden in the Hague Convention, that shelling of an open city consequently represents a serious violation of international law. Article 25a of the Agreement concerning laws and practices of land warfare dated 18 October 1907 and I quote: "It is forbidden to attack or shell undefended cities, villages, dwellings or buildings, whatever medium is employed".
Even if no express mention is made in the Hague Convention of bombarding of open cities by planes -- simply because at the time the Hague Convention was formulated, squadrons of aeroplanes were still not known, yet this internationally recognized law must be applied today, according to its meaning, to aerial warfare too, if it is still intended to apply at all.
The sense of the above provision of the Hague Convention is doubtless that open cities and their inhabitants not taking part in the war are to be spared from annihilation, in connection with which it is a matter of indifference in the end whether this annihilation is effected by artillery shells or aircraft bombs, for, in the long run an aircraft bomb is nothing but an artillery shell aimed by a plane and the final effect of destruction and death is the same in both cases.
Now it is not known to the defendants whether Allied officers who took part in one form or another in such bombardment of open cities or in the dropping of atom bombs started investigations at the time when they got these orders as to whether carrying out of these orders constituted violation of the Hague Convention or not. Insofar as this happened, the result must inevitably have been the same from a rational point of view as was found and ascertained above. What is certain however is that the Allied officers did not refuse to carry out these orders; for that these orders were carried out, there are witnesses enough of the fact in Germany and Japan.
The fact that bombing attacks on the civilian population of open cities were started by the Germans first can only play an insignificant part here. The opinion was often expressed just by the Allied side that two wrongs do not make a right. There exists however no doubt whatsoever that compared with number and effect of these German attacks the number and effect of Allied bombs on German and Japanese cities was actually monstrous. The retaliation surpassed the offense here to an extent not yet to be realized today.
With all this however new accusations are not to be made, although one must admit from an objective point of view that one could institute new and just as telling accusations as those submitted in this trial.
This example is only to show with what difficulty the questions of military obedience can be brought into conformity with the provisions of International Law in the case of subsequent legal checking, especially if the international law provisions are out of date, and that is what they are as regards partisan warfare as waged in the Balkans and as it must be carried on again today in Greece, or at least just as much as with reference to aerial warfare.
A further important point in this connection: One of the fundamental principles of law reads:
"Voluntas punitur, non exitus!"
in German "The will (to crime) is to be punished, not the result."
Who, however, after all the material submitted here in evidence, will still bring forward the assertion that those defendants had acted from criminal disposition, criminal motives or criminal intent? Not once could they have had the conviction that they were committing deeds in violation of international law or even crimes: for, firstly, the orders they received were already checked several times by competent legal authority and found to be correct when they reached them. The further the recipient was down the scale the more he must assume that his superiors had been aware of their responsibility in passing on these orders. Secondly, they were soldiers at the front whose task it could not be to check, from a legal standpoint, orders received from above. They had to act under the pressure of events and their vindication and often have recourse to severe measures, for -- to quote the wording of Par. 358 of the "Rules of Land Warfare" --- and unscrupulous enemy left no other possibility for reply to his barbaric abominations and the security of the troops demanded immediate drastic measures", what one now wants to construe, at a later day with months of work on the part of first rate jurists, and alluding to all possible provisions and theories and having recourse to Control Council Law No. 10 (of which incidentally no one could have any idea then) as acts violating international law, as crimes against humanity and warcrimes, were, when all is said and done, self-defense measures taken by these military leaders who were placed in most difficult positions, but never conscious or even intended crimes.
Had they been criminals, had they had the will to commit crimes, they would have carried out the orders from above one hundred per cent and not always in a less drastic form, changed, altered and in part not at all, they would not repeatedly have made available considerable resources for the care of the civilian population, for sanitary measures of a most extravagant nature, for the Red Cross and its Relief. They tried to steer a middle course between military duty to the fatherland engaged in the grimmest of struggles, their own conscience, the embarrassing situation in which they were placed, as a result of the unprincipled conduct of war on the part of the rebels. In so doing, one or another nay have tripped up here or there but never to the extent of committing a conscious or intended crime. That they could not produce in the Balkans the ideal condition that seems to be in the mind of the Prosecution is rooted only to a very small degree in the human insufficiency of the defendants, certainly not at all in any criminal tendency present. Furthermore, not until this day has the Prosecution been able to say, what the defendants should have done actually, and the latter do not believe either that it can divulge to us a recipe of the kind, apart from the one piece of advice, to withdraw and in this way evade responsibility -- council which the soldier with a sense of responsibility will as a rule consider as cowardice, as breaking of the military oath, as faithlessness to people and fatherland. -- However, to return to the case of the defendant Geitner, who as a mere chief of Staff was free according to German law and German interpretation from responsibility for orders given by his commander. The legal position explained as regards the position and authority of the Chief of Staff is valid to an even greater extent for orders by which reprisals were prescribed. For the ordering of reprisals was always a part of the executive power and this was always in the hands of the Military Judiciary Authority personally, that is of the commander.
Conception and meaning of the executive power is defined in the Reich Defense Law dated 4 September 1938. I quote: "The Commanders in Chief exercising executive power can, with effect for the sphere of operations, issue legal decrees, constitute special courts and can give instructions to authorities and offices competent for the area of operations (with exception of the supreme Reich authorities, the supreme political State Authorities and the Reichsleitung (Reich Directorate) of the NSDAP.)" With this "executive power" Brigadier General von Geitner had as Chief of the General Staff nothing to do in principle.
This principle was put in practice so consistently and universally in German military law that No. 72 of the "Handbook for Service with General Staff in War Time" laid down that the Head of Dept. III (that is the jurist of the Army Corps) was to be the unique adviser of the Commander in all legal questions; I quote: no influence is due to the Chief of General Staff on what is submitted by III to the Military Judiciary Authority"; he was to receive through the legal official merely a communication concerning events such as come to the knowledge of the legal official", which "concern spirit of the troops or persons in special positions." Reprisals and such like however were undisputably the affair of jurisdiction and the Chief of Staff was consequently excluded on principle. competencies to a reserve officer who had so far never had any dealings with matters of this kind, coming from entirely different surrounding.
Possibly in the mind of both of the Commander's in Chief the tought may have played its part - unexpressed - that they themselves had to carry heavy enough under this load of responsibility for such exceptionally stringent measures, and that they did not want to burden even partially a co-worker with this responsibility whom they knew and esteemed as an anxiously correct man, directly embodying in his person the love of justice. But first of all both Commanders were aware of the fact that they took a great responsibility upon themselves with these reprisal measures, that they thereby decided over life and death of possibly quite innocent persons, or that they deprived whole villages of their property and homes; it is obvious that a general conscious of his responsibility reserved such far reaching decisions only to his own decision; for he and only he had to take over the responsibility for this and he was only able to do so, if such measures had been ordered by himself. It is therefore nothing remarkable, but was only natural, that General Bader well as General Felber did not transfer the decision in such important questions even to their Chief of Staff.
In paragraph 3 I deal with the sithature of the defendant von Geitner, which appears on various reprisal orders of his commanders and which he rad to sign according to instructions, but which in spite of this represent orders by his military commanders. I don't want to read these statements in detail, but I recommend them to the judicial notice of the tribunal, particularly so because I believe defense counsel for General Foertsch will deal in more detail with this matter. I continue reading now on page 49.
Chief of Staff von Geitner acted in such cases not by any own initiating and not in the execution of any own authority to command and personal responsibility, but merely as the subordinate organ of execution who in the legal role of a clerk, and according to the dictation of the Command in Chief, writes his orders down on paper and dispatches them to the branch office. He occupied legally in this case no other position as that of a Court clerk for instance, who initialed a copy of the sentence issued at that time by the IMT and dispatched same then to the authorities executing the sentence.