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:
"No; on the contrary, he supported me when I complained to the OKW, and we had, of course, no other aim than to occupy a pacified country." (end of quotation) That is on page 3232 of the German and Page 3283/84 of the English transcript.
That Foertsch did not go beyond his authority as Chief, that he assumed no authority over the commander's and offices subordinate to his Commander-in-Chief, and that he informed his Fieldmarschall as was expected of him, may be seen from Quotations later on in the interrogation especially when the question was asked: and I quote, "Did he at any time overstep his authority as Chief of the General Staff?"
(end of quotation) Answer:
and I quote, "I have not learned of any such case.
I never heard anything from subordinate offices either, that they had complained about it." (end of quotation) In the witness stand General Kuntze testified to the same effect on pages 355/56, 3634 of the German, page 3618/19 and 3697 of the English transcript). During the cross examination by the Prosecution he gave answers which emphatically refute the Prosecution's assertion of Foertsch's dominating influence over his Commander-in-Chief and in the South-East generally.
I therefore quote the following particularly:
Question: I quote, "Did Foertsch have great influence upon you?
Answer:
"Foertsch did not exert any influence upon me....."
Question:
"Did you every have the feeling that you were dominated by Foertsch, that it was really he, and not you, who was in power in the South-East?"
Answer:
"No".
Question: and I quote.
"Do you consider Foertsch as the most powerful man after you in the South-East while you were serving there?"
Answer: and I quote.
"Well, a chief has no authority to command consequently he also cannot be the most powerful man." (end of quotation) (Page 3679/80 of the German, page 3745/46 of the English transcript).This picture of General Foertsch has been confirmed by Fieldmarschall von Weichs in his affidavit, that is Exhibit Foertsch No. 71, page 1 of the Foertsch Doc.
Book V).
I shall continue reading on page 25 now, the last paragraph on page 25.
The quotations just given should alone be sufficient to refute the assertion of the Prosecution that General Foertsch had been the dominating military figure in the South-East, that he had incited his Commanders-in-Chief to the crimes which allegedly had been committed by them and, therefore, was responsible for them. Since I have proved that the position of Chief of the General Staff in the German Army excludes the possibility of such an influence it is up to the Prosecution to prove that Foertsch himself by overstepping the generally recognized sphere of a Chief of Staff gave orders or that decisions by his Commanders-in-Chief were made on his initiative. The Prosecution has failed to produce this evidence. Nevertheless, I, on my part, will still give proof that General Foertsch actually kept within his bounds as Chief of Staff and I want to show particularly how narrow the bounds of his advisory activity were due to the special circumstances of our case and why according to his whole attitude he could not be considered as the one who egged on.
1. Did Foertsch himself give any orders which were connected with the crimes alleged by the Prosecution?
According to the Prosecution's own assertions there are from the very start only four cases to be considered under this question, namely:
a) the Prosecution under 15 d of the indictment asserts: and I quote, "On or about 10 August 1943, the Chief of Staff Army Group E and supreme Command Southeast issued, executed, and distributed to troops subordinate to that command an order to deport the male population of whole villages in the occupied territories of Greece and Yugoslavia for forced labor in Germany, and "to answer attacks on German soldiers and damage to German property in all cases by the shooting or hanging of hostages, the destruction of surrounding villages, etc."
(end of quotation) This order has been introduced by the Prosecution as Exhibit No. 306 in Doc Book 12, German page 94, English page 112.
In the Doc. Book as well as in the original this order bears the signature of General Loehr. One can, therefore, not understand how the Prosecution can make the assertion that Foertsch had "issued and carried out" this order. Neither in the Document Book nor in the original is there even one initial of General Foertsch to be found on this order. Regarding this I refer also to Foertsch's statement on page 4259 of the German and page 4344 of the English protocol.
b) Under 12 i of the indictment the Prosecution asserts that on or about 11 September 1943 and I quote:
"the Commander-in-Chief and the Chief of the General Staff of Army Group F and the High Command Southeast" and some other Commanders had given an order for the execution of one staff officer and 50 men of each Division of the capitulated Italien army.
Hereto must first of all be said that right to begin with it is impossible at a military command post for two persons to give an order. But regardless of this inexactitude I have waited in vain for the Prosecution to submit a document from which one might conclude that such an order issued by the Commander-in-Chief and the Chief of staff (Foertsch) had been given.
The one document to come under consideration in this connection (Exh. 327 of the Prosecution's Doc. Book 41 of the German and page 55 English text) is also not an order of Army Group F. Hence the Prosecution in this case 12 i of the indictment also is wrong in the assertion that the defendant Foertsch himself had given an order. Thus, in the only two points of the indictment concerning General Foertsch personally (12 i and 15 d), the Prosecution's assertions were incorrect. This could have been avoided if the documents had been examined before the indictment was drawn up.
c) The third case to come into consideration is Exhibit 69 of the Prosecution in Doc. Book 2, German page 106, English page 138.
This is an order of the High Command of the Armed Forces (OKW) of 28 September 1941 signed by Keitel concerning the "taking of hostages" and the passing on of the order under 4 October 1941 through the commander of the Armed Forces southeast to the subordinate Commander. The forwarding order reads: I quote:
"Enclosed copy for further action in accordance with the political situation prevailing in the area. Please report action taken. For the Armed Forces Commander South East the Chief of the General staff.
(signed) Foertsch."
(End of quotation).
There is no occasion here for me to go into the contents of the OKW-order, I only want to stress the following: This is the only case in all the material introduced by the Prosecution in which Foertsch had signed a document which had an enclosure of an OKW-order and could, therefore, be regarded as an order in itself, namely an order to the subordinate offices to pay attention to and to execute this OKW-order. But here also General Foertsch acted only in accordance with the legal authority of a Chief of the General Staff as is shown in the form of his signature already. Not even this mere forwarding of an OKW-order was done on General Foertsch's own responsibility as Chief of the General Staff, here too he acted only by order of his commander in Chief and after the matter had been submitted to the Commander-in-Chief and the Commander-inChief had decided that it should be forwarded. The latter was deposed unrebutted by Foertsch under oath as witness in his own case. This is on (Page 4093/94 of the German, page 4172/73 of the English protocol).
This testimony appears to be still mere convincing as the three commanders in Chief of Foertsch who are still alive, agreed in their testimony that they always had been duly informed especially of important matters. It is however evident that a Neitel order was an important matter. d) The last case we have to consider here, namely an oral command of General Foertsch, according to the indictment, is shown in an entry of the far Diary of the Commanding General and Commander in Serbia on 26 November 1942 (Pros. Exh. No. 231, Dec. Book 9, Page 76, German, page 67 English).
The entry reads as follows: I quote "The Army Chief demands on the telephone the shooting of all mayors who maintain a passive attitude".(End of quotation.)
Apart from the fact that the shooting of the mayors never took place and the document therefore is actually irrelevant for our case, the order in question was not even issued by General Foertsch. At first it is to be noted that this entry in the War Diary must be incomplete, because a telephone conversation-and that is what we are concerned with here-consists usually of a mutual conversation. The real importance of this call could only be judged correctly, if we would be able to establish the course of the whole conversation. It is certain that one can not conclude from a short note, that Foertsch here had really expressed his own will and did not simply pass on an order of the Commander in Chief. The prosecution therefore in this case also has not proven that Foertsch has independently issued an order which would have exceeded his legal authority as Chief of the General Staff.
e) As a matter of precaution I also would like to mention here the other cases in witch Foertsch has signed documents. The documents in question however are not orders, but reports and dispatches, as it can easily be seen by the headings. From the words report or dispatches it must be concluded that the documents contain a description of passed events or of events which are still taking place, but that they refer by no means to an initiative for future actions. Only the latter could be considered an order and could have established the cause of a crime. The reports and dispatches, even as far as they are signed by Foertsch, can not be used as evidence for having committed a crime, by issuing orders. They prove at the best that he had knowledge of certain happenings which however by themselves, without any connection with his own commissions or omissions in violation of his duty, do not establish a crime, not even according to Control Council Law No. 10. The heretofore existing verdicts of the Military Tribunals confirmed this interpretation.
It appears however that the prosecution by reprinting in their document books single sentences from reports and dispatches tries, to prove that they were in fact orders. That I may not lose the connection of my statement at this point, I will leave the discussion about the documents concerned to a later part of my pleadings. Since however I intended to prove already at this point, that General Foertsch has not exceeded his authorities as Chief of Staff, I will here quote an example on the basis of which the prosecution obviously wants to prove the issuance of orders. .....or at least wants to prove the dominating influence of General Foertsch. However, I would like first of all to recall for the Tribunal, in order to straighten out any possible doubts, the statements made by Halder and Felber which prove beyond any doubt that the person who submits a military report or report only holds the responsibility for the correctness of the description of events not however, the responsibility for the described events themselves. (Doc. Geitner No. 8, exh. Geitner No. 6, doc. book Geitner 1, page 18 and the record, p. 1818 German, 1824 English).
The example selected by me is the "report about the blasting of the Gorgopotamos bridge", dated 15 December 1942, signed by General Foertsch (exh. 233, p. 81 German, p. 73 English, doc. book 9 of prosecution.) The heading already shows that a "report" and not a "command" is concerned. The signature has been given for the reason already mentioned several times and showing, that Foertsch did not issue this report for his personal field of command but for his superior officer and in agreement with him.
The excerpts from this report which the prosecution has reprinted an its document book under f and g doubtlessly gives the impression at first as if actual commands have been inserted in this report. This impression, however, is only caused by the fact that these sentences have been taken indiscriminately from the complete text. During my direct examination I have shown General Foertsch the original of this report which was deposited with the secretary General by the prosecution. He has the following to say in this connection.
Document: Foertsch "Here, too, the omission is misleading.
According to the original I find that this report of event has two parts. First part: actual events, just as they are described in this document book, and second, conclusion drawn from these events. The heading for this paragraph has been left out. Furthermore it can be seen that under the "Conclusions", letters a - e, only tactical conclusions were drawn, for instance ......... and then, at the very end, paragraph f and g are mentioned while these paragraphs have been emphasized particularly in this document book, of course."
(end of quotation)
The importance of the conclusions set at the end of this report consists of the fact that the commanders responsible for the security of the Railroad line were instructed to consider the opinions stated in this report, concerning the proper security of the railroad line and, under their own responsibility to draw the conclusions and take the measures which they deem appropriate. The commanders subordinated to the Defense District Armed Forces Commander Southeast were therefore in no way duty bound and could not shift their responsibility on to this report since it did not take the responsibility away from them which could only have done by a direct command. Furthermore, the prosecution did not prove and did not even intend to prove that actions based upon these "conclusions" have taken place.
I shall continue reading on page 38, third paragraph on that page, just before the middle of the page.
The prosecution has neither shown evidence that Foertsch himself has issued commands which violated the laws of warfare and humanity, nor has the prosecution been able to show that Foertsch as (Agitater)" instigated these crimes with his superior Commanders. Guilt on the part of General Foertsch could therefore only be derived from neglect of an action which he was duty-bound to carry out. That was Foertsch supposed to do, in the opinion of the prosecution, in order to prevent the crimes which his superior Commanders and subordinate Commanders have allegedly committed?
I would like to start with the question whether or not Foertsch was in a position to prevent the crimes allegedly committed by the subordinate Commanders, and whether he was legally committed by the subordinate Commanders, and whether he was legally compelled to do so.
In citing the Yamashita sentence the Military Tribunal I in Nuremberg has found the former Chief of the German Werhmacht Medical Corps guilty in having carried out medical experiments on prisoners, contrary to the laws of warfare and humanity, because the medical officers who carried out these experiments were subject to his command. Conversely, the thesis has been pronounced:
He who is not entitled to the power of command over those who commit war crimes and crimes against humanity, is not responsible for them.
I have proven in detail that General Foertsch as Chief of the General Staff in accordance with directives had no right of any kind to issue commands to or take penal action against the Commanders and troops who were subordinate to his Commander in Chief, and that he actually did not take the right to issue commands or take penal action upon himself of ids own accord. Therefore, from the very start, responsibility on the part of Foertsch for the alleged crimes of subordinate Commanders and troops is eliminated so that no legal duty existed for him to prevent them. His neglect to influence the Commanders and troops subordinate to his Commanders can therefore not have been the origin for the crimes allegedly committed there. In consequence of this no guilt can be placed upon him.
In accordance with this only the following final question remains open: Could General Foertsch prevent his Commanders in Chief from committing crimes against the laws of warfare and humanity? Was it his legal duty so that neglecting to exert a preventative influence can be considered as guilt?
First of all I would like to establish, which in itself is natural, that the Commanders in Chief were not subordinated to the Chief of the General Staff but vise versa. Thus if for no other reason, it is impossible for logical reasons that Foertsch can be punished for neglecting to exert an influence, then such responsibility for the actions of another exists, if at all, only for those who exercise the power of command over these others.
Document - Foertsch.
I admit, however, that one could be led to the assumption - and the prosecution will like to pin it hopes to this idea - that general Foertsch in his capacity as advisor was duty-bound to prevent his High Commanders from taking those measures in which the prosecution see crimes against the laws of warfare and humanity.
I have shown that the Commanders in Chief were bound through their general military orders in the Southeast, through the attitude of the population and finally through strict orders from the O.K.W. (High Command of the Wehrmacht) to bring about peace and order under all circumstances in the country and to secure the supply lines. As a means of attaining this goal the OKW (High Command of the Wehrmacht) issued special orders concerning measures against partisans and against the population sympathising with them. Reprisals were ordered. The basic order of the OKW (High Command of the Wehrmacht) was presented by the prosecution as the Keitel Reprisal Order of 16 September 1941 with the ratio 1: 50 to 100 exh. 53 in doc. book II, German page 52, English page 67. Therewith the tendency for all further orders regarding reprisals was established as long as the OKW (High Command of the Wehrmacht) itself did not order a moderation. I will ignore the point that Foertsch was not on duty at all at this time but was on leave. But, if Foertsch as Chief of the General Staff had wished to give his Commanders in Chief the advise not to carry out such orders and not to forward them to the subordinate troops, this would have been comparable to inciting disobedience on the part of the High Commanders against the OKW (Command of the Wehrmacht.) This is the way in which the Commander in Chief would have taken it if Foertsch had wanted to teach him that these orders of the High Command of the Wehrmacht should not be carried out because they did not comply the law of war.
The Chief of the General Staff is not in a position to be either a teacher or guardian of the Commander in Chief but rather his helper. His duty is not to impose advise on the Commander in Chief which he does not adk for. In legal questions - which are the main issue of our case the Chief of Staff is not the one who has the duty to advise his superiors but the legal clerk of the army, as I have already shown by the "Handbook for the General Staff Service".Now, was there a legal duty for General Foertsch to induce his Commanders in Chief to disobedience to the High Command of the Wehrmacht?