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.
But the case touched upon in the second sentence of paragraph 18, the case of prolonged absence of the commander is more important and already perfectly clear at this juncture. If the Chief of the General Staff had the powers of command attributed to him by the Prosecution, or any other powers, nothing would be more natural than that he would automatically have to deputize for his Commander in Chief in cases of prolonged absence, also for instance, also for instance in case of illness. The Manual does not provide such a regulation and we shall prove later on that General Foertsch was never once commissioned to deputzie for his commander-in-chief.
3. On the Duties and Limitations of the Chief of Staff as "Advisor" of the Commander-in-Chief in particular.
I take it from various questions of the Prosecutor in the crossexaminations of General Foertsch and some other defendants and witnesses that the Prosecution is well aware of the weakness of its own contention that Foertsch had powers of command himself. Therefore, the Prosecutor tried to adduce proof that Foertsch, through his "giving advice" to the Commanders-in-chief, had decisively influenced the formation of their decisions and had thus incited them to commit the alleged crimes. I shall go, as far s the special case of Foertsch is concerned, with greater detail into that matter in the further course of my plea. At this juncture I will, again on the basis of the "Manual" (Exhibit No. 10) and the Nalder Expert Opinion (Exhibit No. 11), set forth the duties and limitations of the Chief as "advisor" of the Commander-in-Chief will in particular, discuss the question of whether this advisory activity of the Chief of Staff can at all be considered as constituting a cause for the decisions of his Commander-in-chief.
A.) Giving Information to the Commander-in-Chief.
The provisions covering this point are contained in paragraph 10 of the Manual (page 44 of the Doc. Book). In the first place it follows from it that the Chief is not the only person of the staff who informs the Commander-in-Chief.
He only regulates the flow of personal reports to the Commander-in-Chief and may attend them. Of special importance is the obligation of the Chief and of the other General Staff officers contained in sub-paragraph 2 of paragraph 10, to give an objective picture in their own personal reports to the Commander-in-Chief, that is to say "without any partiality towards any preconceived opinion. "This shows again that the Commander-in-Chief takes his decisions himself and has to answer for them alone and that the members of the Staff, with the Chief-of-Staff as its head, merely have the obligation to make him acquainted with all important circumstances, and this in every direction, and that it is for his to take his choice through his own determination and that he than has to answer for his decisions himself.
b) Giving advice to the Commander-in-Chief.
The principle expressed in paragraph 3 of the Manual (page 43 of the Doc. Book) that the Chief of the General Staff" is the first advisor of the Commander-In-Chief in all fields" calls for a definition from the contents of the following paragraphs. Paragraph 4 outlines the substances and scope of this advisory activity of the Chief and establishes at the same time an obligation of the Commander-in-Chief to hear the Chief of the General Staff. But this obligation is expressly confined to the preparation of decisions of an operational and tactical nature. I shall, at a later stage, show that the crimes charged did not concern matters of an operational or tactical nature. If, therefore, the importance of the Chief of the General Staff wore to be based on paragraph 4 such an argumentation would not be conclusive for our case.
To this must be added that the Chief of the General Staff, though being the highest ranking officer, is not the sole advisor of the Commander. The whole language of the Manual, especially paragraph 2 of the introduction (page 42 of the Doc. Book) shows that the General Staff officer generally speaking, that is to say, not only the Chief, is the advisor of the Commander.
Nor is, as, it may appear at first sight from the wording of paragraph 3 (page 43 of the Doc. Book), the Chief of the General Staff the first advisor of the Commander in all fields. In one field, which is of special importance for our case, his advisory activity, and his influence generally, is rather ruled out. In section c of the Manual, entitled "The Army/ (Corps) Judicial Officer (III)" it is stated under paragraph 72 (page 45 of the Doc. Book):
I Quote:
"III is the advisor of his Command in all legal matters. In this capacity he is directly subordinate to the Commander in the latter's capacity as Justiciary and reports to him personally. The Chief of Staff's influence on the submissions of III to the justiciary is precluded." (End of quotation.)
This shows again clearly that the Chief of the General Staff is not "Gerichtsherr" (justiciary). This, however, is a typical attribute of the "Commanders" amongst whom the Prosecution evidently numbers General Foertsch.
c) Does Giving Information and Advice to the Commanders (Commanderin-Chief, etc.), as done through the Chief of Staff, Constitute a cause for the Decisions of the Commander-in-Chief.
The tendency of the Prosecution is to convince the Tribunal that General Foretsch as the first advisor was the spiritus rector of all decisions of his Commanders-in-Chief. He is thus charged with criminal "incitement". This would require that Foretsch through his informatory and advisory activity had first created in his Commander-in-Chief's mind the preparedness and the decision to act. There is a number of reasons why, in the Foertsch case, this was not so and could not be so as the Prosecution contends. I shall come back to this. At this juncture the question will be gone into whether the Chief of the General Staff came, quite generally, through his informatory and advisory activities create causes that lead to decisions and actions of his Commander-in-Chief.
We must insist that all the requirements which are attached to criminal causality, be not by this "Causation".
The provisions of the Manual referred to so far (Exh. Foertsch No. 10) show that the Commander-in-Chief is absolutely at liberty to decide on his course of action, one way or the other, on the basis of the personal reports of the Chief of Staff and the other General Staff officers. This freedom exists, however, only as far as the influence of those persons is concerned. That the Commander under certain conditions, is limited in his decisions by higher authorities. is quite a different matter. I shall discuss this case later but can already point out here that in such cases of limitation from above there can be no question at all anymore of an influence of the Chief through his informatory and advisory activities. In each case the Higher Leader can take decisions without at all taking informations and advice beforehand. The sole exception - before decisions of an operational and tactical nature - I have already mentioned. In that case, too, the Commander-in-Chief is absolutely free to act against the advice of his Chief. The Chief of Staff has not even the right anymore, as in the Chief of Staff of the first World War, to have his divergent opinions recorded in the files and reported to higher authorities. He has, on the contrary, also in cases of divergent decisions of the Commander-in-Chief, to use his influence for the execution of the order (paragraph 4, sub-paragraph 2, sentence 2 of the Manual, page 43 of the Doc. Book).
I have already stressed the fact that the "incitor", under criminal law, must be given the first and decisive impulse for the crime committed by the person incited. Such a possibility is ruled out by the relationship between the Chief of the General Staff and the the Higher Leader by the following fact. The military leader is called upon, in a given situation, through his actions, that is to say, through his decisions and orders, to shape further developments and happenings along the lines of the tasks set to him. The general preparedness to act, which must first be created in the "perpetrator" by the "inciter" can be considered to exist in a military leader, since military orders make acting his duty.
The question still remains to be considered what influence the Chief of Staff was able to exercise upon the decisions of his Commander through his "informatory activities". As a rule, that is, in the case of objective information that gives a true picture of the facts as required by paragraph 10 of the Manual (page 44 of the Doc. Book). the influence of the Chief of Staff has no decisive, that is, policy--making importance at all. The possibility of a decisive influence of the Chief, which could start a series of causes and effects of its own, is thinkable only in one case, to wit in the case of the Chief of Staff deliberately informing his Commander-inChief incorrectly and a biased way. Special proof for this, however, just because it is an exceptional case, would have to be adduced. I shall show that this has neither been claimed nor proven in the case of the defendant General Foertsch.
In conclusion, I may be allowed to summarize my findings concerning the question of the causation through informing and advising
a) The Commander-in-Chief need not be made to act through the advice of his Chief of Staff.
b) The Commander-in-Chief was entitled to act without the advice of his Chief of the General Staff since he was in the position to reach his own conclusions and decisions through current information.
c) The Commander-in-Chief was only obliged to hear the advice of his Chief of Staff when decisions of an operational and tactical nature were concerned.
d) The Commander-in-Chief inasmuch as he consulted anyone before the decision, did not rely exclusively on the advice of his Chief of Staff.
e) That the commander-in-chief was under no obligation to follow the advice of his chief of staff.
f) that the causality of the advice given by the Chief of Staff cannot be considered as established even when the decision made corresponds with the one proposed. Causality of the advice could only come into consideration at all if the commander-in-chief had become convinced by reasons which the chief of staff had given as basis for his advice. However, the possibility that the commanderin-chief had reached the same conclusion on the basis of different considerations, is not to be ruled out.
g) that the commander-in-chief, as far as legal questions are concerned, was advised by an official of the military administration of justice, and not by the chief of staff.
If one therefore wants to construe causal relations on the basis of the mere fact that a certain order had been issued by the commander-in-chief and that General Foertsch was chief of staff at that time, one has only presumptions to go by which in themselves are no conclusive force.
4. The significance of the Initialling (Abzeichnung) by the chief of staff of drafts of orders and other documents signed by the Commander-in-Chief.
There is no standard official regulation with regard to the significance of the, in correspondence frequently customary, mark (signum) of the chief of staff on drafts and fair copies to be submitted to the commander. I hereto refer to the Opinion of Halder in Doc. Book 1 for the defendant Geitner. Under (4) on page 17 of the Doc. Book mentioned it says: I quote, "When no other agreement had been made between the commander and the chief, the following may be accepted as the rule:
In submitting a draft to the commander for approval, the mark of the chief indicated that in his judgment the draft was in keeping with the intentions of the commander and the orders given by the superior authorities and that the chief agreed with the way the document was drawn up.
If there were any doubts as to the wishes and intentions of the commander of if there were contradictions between him and the instructions from superior offices, then it was customary to present the question orally before submitting the draft. When the chief as the one responsible for the office placed his initials on a fair copy the draft of which had already been approved, this indicated merely the fact, according to general usage, that the fair copy was identical with the draft and could be signed without having to be read again." (end of quotation) From this it must be taken that the draft of an order and the initialling of it by the chief as a rule followed the decision of the commander-in-chief.
This is the main difference between it and the "ministerial initialing". There it can easily be the case that a respective expert works independently in his line and submits the drafts initialed by him to the Minister without having first ascertained the wishes of the Minister is not in a position to fully judge the justification and consequence of the propositions of his expert (Referent).
How the commander-in-chief came to his decision, hence the causality of the initials of the chief of staff, cannot be gathered from the initials as such, because the chief of the General Staff has to fully support the execution of the wishes of his superior leader even when the opinion and decisions of the latter differ from his own. However, the fulfillment of this duty requires that the decision of the commanderin-chief be made out in the form of an order and initialling of it by the chief of staff was a usual part of it.
5. The significance of the signature of the Chief-of-Staff on orders and other documents.
Only in one case could the Chief of the Chief of Staff sign, as it were, for his own firm: in his own extent of command. The Chief of Staff's own extent of command was the staff of the headquarters.
He was at the head of this staff and exercised disciplinary authority in it. Orders to the staff therefore had the heading "the Chief of the General Staff of the ...... Headquarters" and bore as signature only the name of the "chief" who had the authority to give orders here (Halder Opinion in Doc. Book Foertsch 1 under 4 on page 46). In all other cases where the Chief of Staff had to affix his signature, he had to do it in the form previously given by me and from which it can be clearly seen that the Chief of Staff was not acting on his own authority but rather in the name of the headquarters, namely his superior leader. Only such documents "which have neither fundamental significance nor contain any important opinion for the recipient" are dealt with here (No. 11 of the Manual page 44 of the Doc. Book). This limitation of the authority of the Chief of the General Staff to sign, shows already that the commanders and offices to whom these documents were addressed could not be subordinate to the Chief, that is they were subject neither to his command nor to his disciplinary authority. Therefore the signature of the Chief of the General Staff could, according to the regulations, appear only on so-called "current matters", that is those which had already been decided upon on principle by the Commander-in-Chief. For the rest it is the usual thing for the Chief of the General Staff to sign dispatches and reports to superior offices and experience reports to subordinate headquarters in so far as these could not be signed by another officer of his staff. All these dispatches and reports contain however, no orders of the Chief of the General Staff. Nor does he thereby assume the responsibility for what had been described in these dispatches and reports. Halder in his opinion concerning this on page 18 of the Doc. Book Geitner at the end says: and I quote, "There is no difference whatsoever between the significance of the signature of the Chief of Staff on a daily communique to the superior offices and the significance of the signature of any other officer of the staff.
With his signature the signer accepts the responsibility for the correctness of the communique but he does not accept the responsibility for the actions reported in the communique."
(end of quotation)
B. Did General Foertsch stay within the limits of the authority of the Chief of the General Staff as described above?
The Prosecution asserts that General Foertsch so to speak had been the "evil spirit" in the South-East, in other words that during the entire period of his service in the Balkans he had influenced the various Commanders-in-Chief in favor of the National-Socialistic extermination-tendencies. The Prosecutor speaks of an absolutely "shocking uniformity" of the barbaric measures of the German troops which were taken and kept up during the entire period under consideration due to the activity of General Foertsch. The only one of all the assertions of the Prosecution that corresponds with the truth, and even that with certain exceptions to be mentioned yet, is the fact that General Foertsch for several years served as Chief of the General Staff under all together 4 Commanders-in-Chief. However, that is not the question, but rather whether it was Foertsch's influence as the one to egg on - upon these 4 Commanders-in-Chief that affected the development of their wishes, i.e. whether it was his counsel that caused the Commanders-in-Chief to take measures which were contrary to the rules of warfare and the laws of humanity. It is a fact that Foertsch himself could not give any orders contrary to the rules of warfare and the laws of humanity to the troops because he had not the authority over them. The only questions to be examined yet are: Did Foertsch by over-stepping his authority as the Chief of the General Staff independently give such orders to the troops subordinate to his Commander-in-Chief as were to result in the perpetration of crimes against the rules of warfare and the laws of humanity? Did Foertsch incite his Commander-in-Chief to take such measures? On the whole: Did Foertsch exert an intellectually dominating influence over his Commanders-in-Chief so that one could from this infer, contrary to the normal case of a Chief of Staff, that Foertsch according to the penal code had given a pertinent cause for crimes asserted by the Prosecution?
I would like to answer the last question beforehand. I am not sure as to the impressions upon which the Prosecutor bases his opinion that Foertsch somehow "dominated" his Commanders-in-Chief. Perhaps it was the personal impression of General Foertsch during the interrogations in the course of the preliminary investigations, and perhaps the Prosecutor feels that this impression was confirmed during General Foertsch's presence in the witness-stand. It is the picture of General Foertsch's personality which, besides the Prosecutor, very likely also the Tribunal and finally I myself as defense counsel have formed: The impression of a strong intelligent personality. Of course these characteristics alone are not yet a crime and they give not the least indication that such a personality enters prima facie into question of the perpetration of war-crimes and crimes against humantiy. If anyone therefore wants to draw the conclusion from these characteristics that he "dominated" or at least strongly influenced his Commanders-in-Chief, then he must try to prove that the Commanders-in-Chief let themselves be dominated or strongly influenced. However, the Prosecutor failed completely in this attempt. May I start with the statements of Fieldmarschall List. In reply to the question of the Prosecutor in the cross-examination:
"Did you accept the advice which Foertsch gave you from time to time?" (end of quotation) the Fieldmarschall answered:
"That all depended. And when I considered it to be bad, I refused it." (end of quotation) the answer was:
and I quote, "..... I very often accepted his counsel when I considered it to be good and useful, but not otherwise."
(end of quotation) (Page 3357 and 3358 German, and 3414 and 3415 of the English transcript). I myself asked the Field Marshal, whether Foertsch was a so-called troublemaker?
He replied: