Both questions are to be answered in the affirmative, General Lanz then entrusted the regimental commander von Hirschfeld with the investigation and the settlement of the matter; this man -- as regimental commander and island commander --- was the judicial authority in charge and therefore authorized to convoke the Summary Court.
Greece and the islands of Kephalonia and Korau belonging to it, were at that time German occupied territory, the whole Italian 11th Army under the command of Vecchiarelli had capitulated to the German troops and surrendered their arms. It had thereby lost its capacity as an occupying force legally and in facto. Greece was under the authority of the German occupying forces and General Gandin was, as long as he remained on Greek territory, subject to German jurisdiction. His actions constituted the fact of mutiny and treason in times of war. For the respective rules of the law state under section 103 of the Military Penal Code dated 10 October 1940 and I please ask the court to take notice of the following paragraphs and I shall continue with the last paragraph on p. 108.
Now I have tried to inform myself in regard to all these difficult as well as complicated questions of law by questioning the former highest military judicial authority, the Chief of the German Army Legal Department about his point of view in regard to these problems of law. But he too was unable to form for himself a clear cut view in regard to the exceptionally complicated legal question in the conferences I held with him for hours; he reiterated time and again, that complicated situations of that kind had formerly hardly ever occurred. In any case, he knew of no similar previous case apt to serve as a precedent in pointing to a decision of this case Lanz Gandin. The Chief of the former German Army Legal Department assured me, that despite days of meditation on this subject, he was unable to reach a decision as to what decision he himself would have arrived at in a case of that kind.
He said, that the difficulties in regard to the legal situation of that time had been even more aggravated by the fact, that probably neither General Gandin nor General Lanz were in any way even aware of what was actually going on in Italy and which government was really to be considered as the legitimate Italian government. Both of the Generals could, as one could suppose without any doubt, in the main base their judgment only on what happened in their own actual sphere. Italy had in any case not declared war on Germany yet, but had combined herself to a capitulation towards the Allies. The Commander in Chief Vecchiarelli had as far as he was concerned capitulated to the German troops. It could really not be presumed that he had any order to the contrary by Badoglio or the Italian King; for otherwise he would not have declared his capitulation to General Lanz.
Now, Your Honor, that is the statement of the experienced legal chief of the law department at the German OKW. But Lanz, the layman, was supposed to solve this question. He did not have weeks and months for consideration and examination, he had to reach his decision immediately, from one hour to the next, anyway before the catastrophe of the hourly expected and feared landing of the Allies would occur. He made his decision, and his conscience was witness to the fact that he decided rightly and that he acted fairly and justly.
Legal consideration of the Gandin case comes therefore in summarizing to the conclusion: General Gandin and his officer accomplices were justly condemned to death and shot by a German Summary Court for "mutiny" and "war treason". They suffered thereby just punishment for their disobedience of orders by their Italian Commander-in-Chief and for their revolt against the German occupation forces in Greece.
If any doubts were still persistent in regard to the Gandin case after the Prosecution concluded its argumentation, then they were dispelled entirely by the argumentation of the defense.
This case-inchief was exceptionally difficult, for the OKW had ordered the Fuehrer orders and the entire correspondence thereto destroyed and this was accomplished by a Staff officer of the 22nd Army Corps. But due to fortunate circumstances some references to the Fuehrer orders was preserved in the War Diary of the 22nd Mountain Army Corps. These Fuehrer orders have also been proved by the Hepp testimony. This witness had served as a reserve officer on the staff of the Major von Hirschfeld, he was a witness to the events of that time; he received and read the orders himself which Major von Hirschfeld received directly from the radio station of the OKW while by passing Corps Commander Lanz. He was also present at the conferences between Lanz and von Hirschfeld at that time and he was a witness to the interrogation of the captured General Gandin by Major von Hirschfeld.
Saved by chance was also the order requested by the Italian General Gandin from Lanz, received by him on 13 September 1943. One may argue about the legal importance of this order and debate as to what legal consequences arose from the fact that the Italian General subordinated himself thereby to the German Commander. The former Chief of the German Army Law Department for instance specified his point of view in this respect: Such a case had never come to his attention, so he knew also in this case no precedent; his personal opinion of this occurrence would be to the effect, that the Italian General tried to demonstrate thereby that he was now subordinate to the German Commander. Whether the Italian General had been in any way aware of the legal position and what importance Gandin had attached to his request for a distinct order, would naturally be beyond his knowledge; but he would have, if he had been German Commander, taken the request of the Italian General as meaning that this man intended to place himself thereby under his command of the German Commander and the consequence of this would have been, that he (Gandin) would have made himself punishable in any case, if he ordered his troops to fight the German troops in spite of this.
But this order of 13 September 1943 proves in its actual relations with certainty, that the entire description given by General Lanz in regard to the events on Cephalonia and Corfu is true. According to statements made by the witness Hepp (Doc. Book Lanz VIII, Doc. No. 194, Exh. No. 101, Page 4) who was personally present during the interrogation of General Gandin by von Hirschfeld, there is no doubt about the fact, that Gandin did not by any chance receive orders to the contrary by Gadoglio or the King of Italy, but that this was entirely an arbitrary act of Gandin in opposition to the distinct and repeated orders of his Italian Commander in Chief Vecchiarelli, despite the fact that also his Italian Corps Commander had enjoined this order upon him by his Chief of Staff whom he sent personally to him. Gandin did not fall victim to contradicting orders, but became a mutineer due to the fact that he could not see his way clear in the then so confused times in Italy, his obvious inability to get in contact with Badoglio and his belief, for some reasons unable to be now ascertained, to be able to act contrary to the orders of his Commander in Chief Vecchiarelli. This clear result of the evidence in the case of Cephalonia and Corfu established for General Lanz a justification for his actions at the time before the law and his own conscience.
He found himself then faced with a much more difficult conflict then his Italian opponent: The latter had clear orders; it was his right and duty to lay down arms, as his commander in Chief Vecckiarelli had ordered him. He saw a straight path before him if he met his opponent frankly and honourably. By the correct execution of the order which he had received, he needed to sacrifice no thousands of brave soldiers. The situation of General Lanz was otherwise: He had from the highest authority the unmistakable order, to have all Italians shot without judicial sentence without pardon. Twice he refused to carry out this order although he was clear about the tragic consequences that this disobedience might have. For his delay might have entailed catastrophe for the German Army in the Balkans, if the enemy acted, and one can easily imagine how such an unrestrained tyrant as Hitler was, would, in such a case, have stormed against the General who had already previously treated Hitler Orders with contempt thereby arousing his keenest disapproval.
The hearing of witnesses by the Defense has however proved a further fact for the case Cephalonia and Corfu which must also be of greatest importance for the proper (rechtliche) judgment. In view of the statement of the witness Hepp that Major v. Hirschfield did not in truth carry out the proceedings by summary court against Gandin and the guilty officers on the basis of an order received from Lanz but on the basis of Hitler Orders. which Hirschfeld had received directly over the OKW-radio. Had Lanz not flown to Cephalonia, had he not negotiated with Hirschfeld, had he given the latter no instructions at all-General Gandin and his Officers would have been shot in spite of this. For Major v. Hirschfeld was ordered directly by Hitler and General Lanz's intervention had in reality merely the significance of limiting a Draconic Order of Hitlers to a minimum, which, in view of Gandin's serious lapse and taking into account the generally dangerous situation, could no longer be avoided, it is true. I would like to add here that the intervention of General Lanz shows the effect that the whole action against Gandin and his officers was guaranteed by Court Marshal proceedings.
Right from the start it was General Lanz's main task to prevent a landing by Allied Forces on the West Coast of tho Pireus and the Islands lying off it. The task given to General Lanz was of the utmost importance for the German Armed Forces; because if such a landing succeeded then the flank of the whole German Balkan Front was torn open, the German Divisions in the Balkans would have been cut off thereby, the German East Front rocked. Lanz was perfectly clear about the significance of his task. The position now became menacingly more acute on account of the resistance of General Gandin on the Islands Cephalonia and Corfu specially important from a strategic point of view; they were a base created by nature for an Allied landing, especially as the Allies were in command of lower Italy hardly 100 km. away. If the landing was attempted then it would find the natural support of Gandin's troops on both Islands. These Italian troops, in the event of an Allied landing and with their help, would have been in a position, without further ado, to overpower the German Occupation Forces on the Islands. Already for months an attempted Allied landing had been counted on on the part of the Germans. The removal of Mullolini and his replacement by Marshal Badoglio who had surrendered to the Allies made the danger of a landing imminent, it might take place any day and then the German troops, much too weak to face the Allies, would have been hopelessly crushed.
In such a dangerous situation the supreme command for a responsible troop commander is: "Act, act quickly, before it is too late". Not in vain did the old German Field Service Instruction which had become part and parcel of a soldier like Lanz, enjoin him. "O m i s s i o n s a n d d e l a y s i n c r i m i n a t e c o m m a n d e r s o f e ve r y r a n k m o r e t h a n a n e r r o r i n t h e c h o i c e o f e x p e d i e n t". In the "Duties of the German Soldier" Field Marshal Reichspraesident von Hindenburg had said solemnly to every German soldier on 25 May 1934, "The highest soldierly virtue is fighting courage.
It demands severity and resolve. Cowardice is disgraceful, hesitancy unsoldierly".
(No. 3); in No. 4 Hindenburg had declared "soldierly leadership depends on joyousness of responsibility". American Military Law has indeed understanding for this point of view. Art. 75 of American Articles of War of the year 1943 threatens likewise with the death penalty or another penalty to be pronounced by the Court Martial the soldier by disobedience or carelessness endangers the security of a fortified place......or any other command, which it is his duty to defend". Lanz in such a situation could not shut his eyes to the importance of his task. He was conscious of the fact: At this moment he could not fail. The enemy landing must be warded off in all circumstances otherwise he would perhaps have been responsible for the collapse of the whole Balkan Front with all its unforeseeable consequences. The main danger in this situation was "Gandin".
In such a situation this officer who had never concerned himself with legal problems was now confronted with the most difficult legal problem imaginable, a legal question for which there was no precedent that might have shown the way out of this labyrinth of most difficult problems.
Lanz stood along without the counsel of jurists who -- perhaps -- might have had so much experience at least that it would have been possible to go at any rate half-way towards solving this problem. He could not delay any longer, besides 10 precious days had already been spent to no purpose for a situation which could have even settled according to Hitler's intention in 24 or 48 hours. Lanz had to act, for he had already waited too long to avoid shedding blood. And he acted finally, not according to paragraphs, which would not have thrown any light on these legal questions which had arisen and on which perhaps he would have heard the most varied opinions even if he had been able to hear skilled and experienced legal experts (Fachjuristen) on this subject, Lanz acted in accordance with his military perception, in accordance with his innate and acquired sense of justice.
As a soldier holding a position of entire responsibility he saw himself faced with an enormously difficult situation and he was certain he could act as he wished, he always ran the risk of making a mistake; and as a soldier he decided on that solution which he certainly could not advocate in face of the clear order of his War-Lord but which he could advocate before his soldierly and human conscience.
True, he could have taken refuge in cowardice, he could have reported sick and left his post to avoid responsibility. He did not do that. Because he had to count on the carrying out of the strict Hitler Order by a successor appointed by Hitler who might have had all Italians including General Gandin and his officers who were also guilty shot.
Lanz - that remains his undisputed merit - by holding out while aware of his responsibility, saved a round 15,000 Italians.
In the following statements, Your Honor, which I do not wish to read at this point, I comment upon several smaller points of the indictment; the intervention of General Lanz upon the part of the civilian population which I describe in brief, and on page 115 on which I omit my concluding sentences, about the middle, it goes on. It is page 115, the end of the sentence of the first paragraph.
General Gandin alone bears responsibility for the struggles on Cephalonia and Corfu. Lanz did his utmost as has been proved to avoid hostilities. Therefore no guilt is his.
General Lanz was, by all means, kindly disposed towards and ready to help the inhabitants of the occupied country.
This is then described in this paragraph, and I shall leave the paragraph out and deal with the last paragraph on page 115.
General Lanz was neither a submissive National-Socialist, nor a soldier who was a slave to Nazism, still much less a hard-hearted or brutal man. On the contrary he was depicted here generally as a man of sensitive nature with the attitude of a convinced christian and with an alert conscience. He always tried to preserve for himself a certain independence where the national socialist Dictator was concerned and, in doing so, repeatedly went further than one could at that time demand of an officer. And today he is supposed to be a "War Criminal". Listen to the voice of the neutral foreign country on this; the Swiss delegate of the International Red Cross, von Bickel, who through the whole period saw, with his own eyes, the activity of General Lanz in the Epirus and who today too, although Lanz is accused here, stands before him to protect him against unjust attacks. He confirms what the Bishop of Joannina already said in the Autumn of 1944 when the German troops withdrew from the Epirus: "Lanz is no war-criminal".
In the 2½ years of the preparation and carrying out of this trial the Prosecution has not found a single witness who could have said something against Lanz or accused him of a dishonest action. On the contrary we have heard here the sworn statements of a great number of witnesses who, without exception, interceded in favor of Lanz although he is accused here; all of them could and had to confirm exemplary disposition and attitude in his case. And yet the number of these witnesses is insignificantly small in comparison with the round 15,000 Italian soldiers whose lives he saved on Cephalonia and Corfu by risking his own person and disregarding Hitlers Orders.
These 15,000 Italians who today in Italy rejoice to be alive, their mothers, their wives, their children, they are truly the best witnesses for General Lanz who saved their lifers happiness for them while risking his own.
The Mayor of Joannina assured General Lanz for all time of the hospitality of the grateful town when the German troops went away. The Bishop Opiridonos of Joannina has solemnly blessed General Lanz before all the people. The Prosecutor nevertheless has brought General Lanz before the Court. But you as judges will acquit him.
PRESIDING JUDGE BURKE: Dr. Sauter, you have two more pages, if you wish to include any additional statements. The presiding judge has called to my attention that we have some additional time if you wish to use it because of the additional material in your brief.
DR. SAUTER: Thank you very much.
Your Honors, the High Tribunal, the plea that I have submitted -I do not wish to read anything further from it. However, I would like to bring to your attention the appendix which I have added to this plea and which we will find on pages 120 and 121 of the plea. I would like to say the following in connection with this appendix.
If I look at these ten generals who belong to all social ranks, all ranks of generals, from the lowest rank of generals up to Field Marshal, then it occurs to me -- and I know -- the hard fate that these soldiers had to undergo. A representative of the Prosecution has here said the ugly word, that the defendants were in the defendants' dock because they had not been men.
If it please the Tribunal, we who strive for objectivity and justice should remember the achievements that these men have brought behind them during their lives and, as counsel for General Geitner, I would like to remind the Court the man about whom the Prosecutor said he had not been a man had already, more than 30 years ago, received the highest Bavarian medal for courage; and we shall also remember that, for instance, General Lanz, who also is not supposed to be a man, as the Prosecution contends, was known throughout the German armed forces as one of the most courageous generals that ever were in the German armed forces.
All these generals as they are siting here had been serving their fatherland for years and years. They all for years and years had carried out their duties in an exemplary way.
If it please the Tribunal, you as judges from abroad will certainly have a false picture if you would base your judgment only on the distorted picture that the Prosecution presents.
We have not the time to show you in the picture of black and white that the Prosecution has presented to you -- to point out to you especially the white side.
Your Honors, look calmly at this appendix to my plea. Then you may get a picture of the conditions under which the German generals, during the Second World War, had to administer their duties. In the survey which represents the common labor of hundreds of German generals and officers, I have described the fate of the German generals during the Second World War.
The general list of ranks shows 1942 German generals. Killed in action were 231. Fatally killed in accident were allegedly died of illness in the field 97; missing were still in the summer 1946, 80; whether some have returned in the meantime, I do not know. By suicide 58 have died and, on the order of Hitler, 22 were executed.
Your Honors, if in the future the history of a Second World War will be written --not by prosecutors but by objective historians -then history will not be able to by-pass those figures. History will have a just decision for these generals and will also have a just evaluation of the innumerable difficulties which they had to combat in a time of incredible tyranny.
Herewith I conclude my plea. I thank you.
PRESIDING JUDGE BURKE: We will adjourn until nine o'clock tomorrow morning.
(The Tribunal adjourned until 0900 hours 6 February 1948.)
Official Transcript of the American Military Tribunal in the matter of the United States against Wilhelm List, et al, defendants, sitting at Nurnberg, Germany on 7 February 1948 at 0900 hours, Justice Wennerstrum presiding.
THE MARSHAL: All persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal V. Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, you will ascertain if all defendants are present in the courtroom.
THE MARSHAL: May it please your Honors, all defendants are present in the courtroom.
DR. LATERNSER: If it please the Tribunal, I would like to make an announcement. Today, Saturday, the defense counsel have not yet received the prosecution's final statement which was rendered on Thursday, although even at that time a German copy was available. I have to assume the prosecution wants to prevent us from being in possession of these statements at a time when we want to reply to them. Further, I want to state that in consequence of the fact that this statement has not been delivered to us I shall not be able to make an important trip which I anticipated making.
THE PRESIDENT: The Secretary-General -- pardon me. Mr. Rapp, is there some statement you wish to make?
MR. RAPP: I merely want to say as Dr. Laternser has stated, the translation was ready on the day we rendered our closing argument, and it is in the hands of Major Granzin who has been running the Reproduction Division for some time. I did not hear any member of the Prosecution tell Major Granzin to do it slowly. I am sure he is doing everything he can. There were a great many courtrooms running -- that day something like six or eight cases.
I just want to say that as far as the prosecution is concerned we are just as interested in getting Dr. Laternser our closing argument as we were to get his. I will check with Major Granzin. He is not under our supervision.
DR. LATERNSER: If Your Honors please, from the statement of the prosecution it becomes apparent that the prosecution is quite well informed about difficulties which arise when one waits to receive something in good time. These difficulties were well known and just because I knew of them I took up contact with all responsible offices so that on the day I was to make my final plea they will be available. I have constantly endeavored to do that and the prosecution should.
THE PRESIDENT: Mr. Marshal, can you contact the proper officials and see that this particular document in the German is in the hands of the German counsel by noon today -- Secretary General.
Are you ready to proceed with the plea?
DR. RAUSCHENBACH:
Mr. President! Your Honors!
In my Opening Statement I had announced that in the defense of General Foertsch, whose counsel I am, I intended to put into the foreground the problem of criminal responsibility. The question to be answered in the first place ran like this:
"Did General Foertsch, through unlawful acts or through omissions in the discharge of his duty as Chief of the General Staff in the South-East Area, guiltily participate in crimes with whose commission through the High Commanders and the Commanders he is charged by the prosecution? Was he, by virtue of his position, at all in a position to participate in such crimes as a link in My proof in favor of General Foertsch was accordingly conditioned by these subjects, and I would like to assume that I have succeeded an convincing the Tribunal that my client cannot be punished, irrespective of the question whether the factual contentions and legal considerations of the prosecution concerning the conduct of the commanders in the SouthEast are correct or not.
My final pleadings shall, therefore, first contain a concluding proof, in factual and legal respects that General Foertsch
1) b* virtue of his position as Chief of Staff cannot be responsible for any crimes of the High Commanders and the Commanders,
2) that he did not actually participate in any such crimes.
I hope, by this, to give the Tribunal a complete and accurate basis on which to found its decision in the Foertsch case, whether the conviction of the innocence of my client, in terms of the penal law, already exists or whether, by arguments which will follow, in conjunction with the result of the evidence, I shall first have to achieve that the Tribunal reaches the decision "Foertsch is free of guilt" or "His guilt has not been proven beyond any reasonable doubt".It is obvious that with this method of defense, the question whether the crimes charged by the prosecution were committed by anyone at all and particularly the numerous points of international law at issue related with this trial, only take second place for General Foertsch.
They are of real significance only if the Tribunal, against my expectations, reaches the conclusion that Foertsch, as Chief of the General Staff, was co-responsible for the acts of his High Commanders in Chief or even the Commanders subordinate to the latter, or that the would have to answer for certain happenings alone. I think it is my duty as Defense Counsel also to consider this unlikely case. I must therefore, in the further course of my final plea, also discuss the evidence introduced by the prosecution in support of General Foertsch's guilt and finally I must deal with the rest of the legal questions insofar as I cannot confine myself in this respect to refer to the answers of some of the defense counsel to the prosecution's legal brief and to the pleas of my learned colleague, Dr. Laternser.
Part I.
Is there at all a criminally significant causal nexus between the position and activities of General Foertsch as Chief of the General Staff and the alleged crimes in the South East?
A. Delimitation of the powers of the "Chief of the General Staff" in general.
In describing the powers of the Chief of the General Staff I base myself upon the documents No. 13 and 13a contained in Document Book Foertsch No. 1, which I have offered as Foertsch Exhibits No. 10 and 11, and which have been accepted by the Tribunal. Exhibit 10 is a copy of excerpts from the German "Handbuck fuer den Generalstabsdienst in Kriege" (Manual for the General Staff in War Time). Exhibit 11 is a sworn expert opinion of the former Chief of the General Staff of the German Army, Franz Halder, on quote, "the position of a Chief of the General Staff of High Commands in the war of 1939 to 1945". The "Manual for the General Staff in War Time" contained the body of regulations relevant for General Foertsch incorporating his duties as well as at the same time the limitations of his powers. The Halder Opinion explains these regulations in detail and concerns itself mainly with the limitation of the powers of the Chief of the General Staff on one hand, and the responsibility of the Commander on the other hand. At this juncture already, I think it necessary to point out that the directive submitted as Exhibit 10 and the Halder Opinion concern themselves only with the Chief of the General Staff of Higher Commands and not with the Chief of the General Staff of the "Supreme" Command,f.i., the Chief of the General Staff of the entire German Army of the Chief of the Wehrmacht Operational Staff (Wehrmachtsfuehrungsstab, formerly Jodl). For these personalities the directive submitted did not hold good, their duties and restrictions were, rather, governed by special basic prescriptions which are not of immediate significance in these proceedings.
Likewise, I think, that I must, at this juncture already, counter a prejudice which might possibly exist with regard to the importance of German General Staff Officers quite generally.
In political and historical discussions, especially in countries outside Germany, again and again a "halo" woven ground the German General Staff. This can, however, only refer to the General Staff of the First World War. At that time, as is shown in the Halder Opinion on page 6 of the Exhibit No. 11, the General Staff Officer, and particularly the Chief of the General Staff, had considerable powers which could directly lead to his supervising the responsible commander. There were even "General Staff Channels" in the First World War. The Chief of the General Staff even had the right, in case his opinion differed from the opinion of his Commander in Chief, to have it incorporated in the files. In 1938 this power of the Chief of the General Staff was abolished on Hitler's orders, and the coresponsibility of the Chief of the General Staff done away with, evidently because the supervising power as well as the co-responsibility of the chief of General Staff conflicted with the rigid "Fuehrer-principle" which requires one person, that is, the commanding officer, Commander in Chief, etc. to bear the sole responsibility. The influence of the general staff officer and the significance of his advice were considerably diminished. I shall, at a later stage, describe in greater detail what influence remained to the general staff officer, especially to the chief cf the general staff.
1. The scope of duties of the Chief of the General Staff.
The scope of duties cf the chief of the General Staff with the Higher Command is shown in Section III of the "Manual for the General Staff in Wartime" printed on page 2 et seq. of the Foertsch Exhibit No. 10. In the introduction to the manual (page 1 of Exhibit No. 10) the following general remark is made about the general staff officer:
"The leader bears the responsibility for the action. The general staff officer is advisor and helper and the conscientious executor of the decisions and orders of his leader. He has to observe the boundry lines drawn to him through this relationship."
In section III of the directive (page 2 of the Exhibit No. 10) at the beginning, it is pointed cut again that the higher leader bears the responsibility for his command, whilst the officers and officials of the staff are his assistants. The chief of the general staff is the head of the staff. It further says:
"The power to decide and the responsibility exclusively lie with the higher leader. The chief of the general staff must go all out for the execution of the will of his higher leader, even if the opinions and decisions of the latter may differ from his own."
The duties of the chief of the general staff are particularized in paragraphs 5 and 18 of this section (pages 44 and 45 of the Doc. book).
2. The limitations of his possibility to exert influence.
a) No power of command and no disciplinary power beyond the circle of his own staff.
The above quoted passages of the manual for the General Staff in wartime show that the power of command of a chief of the general staff was confined to the members of his own staff. The only exception is contained in the last sub-paragraph of paragraph 4 (Page 43 of the Doc. Book). It reads: I quote:
"If the situation requires a quick decision and if the leader is absent and not available at once, the chief of the general staff has the duty to decide and to order. Such orders must be expressly characterized as emanating from the Command and not from the person of the chief of the general staff."
(end of quotation)
Halder makes the following comment on it in his expert opinion under paragraph 5 of page 4 of the Exhibit No. 11 (page 46 of the Doc. Book):
"This means that though in such an exceptional case the chief may decide and give orders and even must give orders, he does so only under the responsibility of his commander even in this case bears the responsibility for the activities of his Command. The result is that, though this is not stated in the directives, that the decisions and orders of the "Chief", even in such a special case must be conditioned by his intention to act in the spirit of his commander."
(end of quotation)
The passage from the Manual quoted above, supported by the comments in the Halder expert opinion, proves that this is only an exceptional case, and that, therefore, in general the chief of the general staff had no power of command that exceeded the circle of his own staff. The exceptional case is of no importance for this trial, for the power of the chief of the general staff to take decisions was confined to the case of the situation requiring a quick decision. It goes without saying that this can only apply to decisions in questions of a purely tactical and operational nature.
Another convincing argument showing that the Chief of the General Staff is not authorized to give orders under his authority, to offices under the jurisdiction of his command orders expression the Chief of Staff's own will, follows from paragraph 11 of the Manual (page 44 of the Doc. Book). He may, according to it, sign only such documents, and I quote:
"as are neither of fundamental importance nor contain any personal remarks with regard to the addressee."
(end of quotation)
First of all: If he must not sign documents containing personal remarks with regard to the addressee this is another sure indication that those addresses, that is to say, the commanders and offices of a lower level are not subordinate to him, the Chief of Staff, but to his Commander. Documents which are not of fundamental importance are the same as the so-called "current matters". This means to say: The Commander in Chief, has already decided on the matter and the Chief of Staff merely carries out the decision of the Commander in Chief. But even in such current matters the Chief must, in s*gning, use the formula: "For the Army Group Command (Army High Command, General Command). The Chief of the General Staff."
b) The Chief of the General Staff is not the deputy of the Commander in Chief with the latter's power of command.
I have already shown through the example in paragraph 4, last subparagraph of the Manual (page 43 of the Doc. Book) that the Chief is empowered to take decisions and to issue orders in the place of the Commander in Chief only in special and exceptional cases involving tactical and operational questions. It only remains for me to mention paragraph 18 of the Manual (page 45 of the Doc. Book). This paragraph reads: I quote:
"The Chief of the General Staff deputizes for the Commander in Chief in cases of short absences. In the case of prolonged absence the Higher Command Authority will regulate who is to deputize for the Commander in Chief."
(end of quotation).
What is meant here by "short absence" is not quite clear without further comment. It seems, however, that this case is covered by the case under paragraph 4, last sub-paragraph, in which the superior leader is "absent and not available at once". Insomuch as the Foertsch case is concerned I had better discuss this question when dealing with the facts immediately concerning him directly.