"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?
Before this question may be answered I believe it necessary to point out once more how different the positions of Foertsch as Chief of Staff on the one hand and of Commanders in Chief on the other with regard to the OKW (High Command of the Wehrmacht), were. The Commanders in Chief were faced with the same problem they have to face in this trial, namely:
Should they obey these particular commands by the OKW (High Command of the Wehrmacht?) It was their own decision which they had to make, namely the decision between the obedience, which is self-understood in all armies in the entire world, and the disobedience, with all its consequences. Foertsch did not have to make this decision, in regard to the commands of the (OKW High Command), for himself. It therefore could not be expected of him - quite aside from a legally important cause - on a general basis that he encourage his High Commanders to refuse to carry out such orders since the results of such actions would have had to be borne above all by the Commanders in Chief.
If, however, the High Commander decided for himself that he considered himself bound to commands issued by the High Command of the Wehrmacht, this decision, in itself, meant the order to pass on those commands and to see to it that they were carried out, so that there was no room whatsoever left for advice to the contrary from the Chief of Staff.
It appears of special importance to me, to prevent that 2 problems are confused with one another.
First: The claim of superior order.
Second: The claim of the fact that no legal duty exist to incite somebody else to disobedience of commands. In this connection I do not refer to the first problem. This applies to Foertsch only if it could be prevent that he himself committed crimes against the laws of war and humanity. This is, as I hope to have shown already, not the case and I will complete the evidence as to this when the individual documents of the prosecution are discussed, and I will also speak briefly about the problem of military obedience. At this point, therefore, only the second question that the claim of superior order does not constitute an excuse or justification, could be stretched so far that even a legal duty could be construed to induce somebody else to disobey military commands which may be intended or the commission of or result in war crimes and crimes against humanity. If the significance of a military commands as a reason for excuse or justification is disputable, especially in view of the fact that the Control Council Law No. 10 - contrary to the International Law existing as far excludes the claim of superior order, it has never been expected, and cannot be taken from the Control Council Law No. 10 either, that someone who does not himself carry a certain responsibility - namely the Chief of Staff - must request someone else - namely his superior commander - to disobey orders; otherwise he, the Chief of Staff, will become co-responsible.
But aside from these considerations, which already concern the question of guilt, it must be stated that neglecting to request someone else to disobey orders could not possibly be a criminal reason for the execution of the allegedly criminal commands.
The reason for carrying out the orders was exclusively the decision of the Commander in chief who carried out the directives of the High Command of the Wehrmacht, submitted to him. A casuality of the advisory activities of General Foertsch could be construed only, if General Foertsch would have destroyed possible objections on the part of his superior commander against the legality of the commands in question and thereby would have prevented his decision to refuse to carry out these commands. This, however, has neither be maintained nor proven by the prosecution. In this connection it should be stated that is has also been neither maintained nor proven, that Foertsch, through his advise had prevented one of his commanders in chief from interfering for the benefit of preventing crimes.
I believe that I have discussed all possible questions connected with the problem of "Causality of the advisory activities of the Chief of General Staff Foertsch."
May I point out in conclusion once more what I have already discussed in detail before, namely that Foertsch's duty to advise to the Chief of General Staff concerned only tactical and operational questions. I therefore believe it impossible to include the problem of taking of hostages and reprisals into the tactical or operative questions as meant by the "manual for the General Staff Service."
C. Cages in which a participation of General Foertsch is already excluded by his absence;
At this point I would like to come back once more to the dominating influence of General Foertsch in the South East, as maintained by this assertion does not comply with the facts. The prosecution, in its opening statement on 15 July 1947, stated the following:
"The consistency of German measures of reprisal is the scarlet thread which is woven into this trial. These measures, as well as the physical presence of Foertsch, lends the periods of List, Kuntze, Loehr and Weich a constant even though shattering unity." (Page 77 of the German, page 72 of the English record.)
I now want to prove that Foertsch was a b s e n t when a considerable part of the events, which are the most important subjects of the indictment happened.
I refer in this connection to the following documents and records:
If the Tribunal please, I shall Skip the following pages which (quote examples. I merely wish to stress the fact that General Foertsch was absent when the OKW order of 16 September 1941, was issued and that he was also absent when General Boehme was appointed and installed in office. I shall continue reading.
I further wish to stress that during this time of absence I also include that time during which Field Marshal List had already been taken ill and General Kuenze had not yet taken over office from him.
I shall continue reading on page 50, top of the page.
One of the documents submitted on the last day when evidence was taken proves in a specially clear manner that also during this time Foertsch had no such command authority as was vested with the Supreme Commanders. Concerned is a communication by General Foertsch, of 18 October 1941, to the Chief of the General Staffs of the Commands which were subordinate to his Commander-in-Chief which may be found in the original in the Prosecution's Exhibit No. 664 -- to be specific, in that part which my colleague Dr. Laternser had submitted as supplement in the morning session of 22 January 1948. This communication reads as follows:
"S 32/6 KTB 93 The Chief of the General Staff Headquarters, 18 Oct.
1941 of the Wehrmacht Commander in the South - East NOKW-2870
TO: Chiefs of the General Staffs, etc.
Generalfeldmarschal List, the Wehrmacht Commander SE, intended to issue an order which was to concern itself with command channels within the command area of the Wehrmacht Commander SE. It could not be issued due to his sudden sickness.
With the request for dissemination to the Commanding Generals, Commanders, etc., I therefore inform you of contents of the intended order which reads as follows."
I shall now continue reading on page 51, the last paragraph on that page. It starts about the middle of the page.
If Foertsch had been the deputy of his sick Commander-in-Chief, or at least had actually exercised his power of command, he would not have felt the need to request the chiefs of the general staffs, of subordinate commands to inform their commanders of something. For in that case he could have issued the contents of his communication simply as an order. This communication proves the more the narrow limits set on the authority of the Chief of the General Staff as there was in this instance not even a matter of principles involved, and in addition, Feldmarschall List intended already before he became sick the issuance of such an order. Nonetheless, Foertsch issued no order to lower echelons, but merely requested the chiefs to inform the commanders. This exhibit is therefore virtually a classical example to show the legal position of a Chief of the General Staff.
D. The personal conduct of General Foertsch during his work in the South-East.
It should now be sufficiently evident that the prosecution's assertion that Foertsch - throughout several years and under four Commanders-in-Chief, had brought about and sanctioned a uniform and terrifying degree of cruelties committed by German troops in the South-East - is not only not proven but is even clearly refuted. I shall now set forth a brief summary of the points proved so far:
By reason of his office as Chief of the General Staff, Foertsch was not even legally in the position to issue orders for such acts, or to prevent their commission, acts which the prosecution wants to interpret as crimes against the laws of warfare and humanity.
He in fact neither held nor usurped such a position in the SouthEast. It would have been impossible for him to be involved in a large number of the prosecution's most important charges, if for no other reason but that he was not even present at the times under consideration, and hence could not be implicated at all.
It still remains for me to elucidate from the personal conduct of General Foertsch that the additional assertion of the prosecutor in his opening statement:
"We see the German army in its shameful role as the servant and tool of Himmler, Sauckel and other Nazi gangsters" (Page 16 of the German and page 17 of the English transcript) does under no circumstances apply to Foertsch, for on the contrary, he repeatedly was trying to take a stand against the consequences of Nazi dictatorship, by making personal calls at the OKW and presenting the views of his Commanders-in-Chief which were opposed to those held by the OKW; and by exercising himself in the South-East his limited personal influence in order to relieve the situation of the population.
I shall continue reading now on page 56, the second paragraph on this page pertaining to "2".
"As a witness, Foertsch stated repeatedly and unequivocally that he viewed the South-Eastern situation as one of compulsion which was highly against his wishes, and that he had tried everything within the limited power of his rank to remove the causes of this compulsory situation. These attempts, particularly, show General Foertsch to be a man who, although he had the necessary intelligence to clearly understand the connections, did not dispose of the power, especially the mower of command, to undertake anything; on his own responsibility, as is shown by his whole attitude towards the problems of the Balkan war. This his attitude completely precludes just that what the prosecution asserts, namely that Foertsch was a willing tool of the highest men in power, and that he even created in their image, as the man who was the most powerful or most prominent in the South-East, a uniform line of cruel policies there, and that he correspondingly influenced his supreme commanders to be "firebrands."
Whilst the prosecution has described its views of General Foertsch' personality and work with persuasive words to the Tribunal -- but proved them by nothing - I have proved exactly the opposite of the prosecution's opinions by the evidence which I presented. At this point I want to refer to the cross examination of the witness v. Harling which was carried out by the prosecution as a rebuttal in the session of 16 January 1948.
The prosecutor obviously tried, at this somewhat late occasion, to find out that Foertsch was the "Instigator". Although the prosecutor attacked the witness with all his might and tried to shake his affidavits for the defense at several points -- all that had been brought out was that for him, as the "Ic", and for the other members of the staff - Foertsch was the "Motor". This, however is nothing special and is completely within the scope of the Chief of the General Staff's position as superior of the other officers of the Staff, and does not prove - which alone is important - that Foertsch influenced his superior commanders. In addition, the witness v. Harling confirmed in a subsequent cross-examination that Foertsch was by no means the "Motor2 of the commanders who were subordinate to his superior commander, and he thus supplemented my formerly adduced evidence, namely for the purpose, that Foertsch neither had any power of command over subordinate commanders, not usurped it or did anything similar.
I now come to the attempts of General Foertsch to fight against the force of circumstances which confronted him in the South-East. Specially informative for this purpose are his APO letters to his wife, which reveal without taking into account the dangers caused by censorship, severe criticism of the supreme leadership, and they are therefore evidence of primary importance because they originated at a time decisive for the subject of the prosecution, and were written without consideration of a subsequent trial. The authenticity of those letters has not been contested by the prosecution. In this connection I refer to Foertsch Exhibits No. 20, 21, 23 and 28 in Doc. Book Foertsch II, pages 13, 14, 17, and 34. The letters quoted show first his general negative attitude towards the highest leadership, but also his attitude during his activity in the South-East which could not be brought into harmony with the aims of the party. Concerning the latter topic I wish to refer at this time still to Foertsch Exhibits 32, 34, 36, 38 and 39, pages 44, 55/56, 69, 83 and 90/92 of the Doc. Book Foertsch II, as well as to Exhibits 43, 46 and 54 in Doc. Book Foertsch III, pages 12, 33 and 70.
That Foertsch did not enthusiastically or of his own free will agree with the measures of the supreme leadership, but regarded them with views ranging from the critical to the hostile, will be seen not only from the APO letters quoted already, but also from the letters of Exhibit 27 and 29 in Doc. Book Foertsch II, pages 33 and 35; and Exhibits 55 and 56 in Doc. Book Foertsch III, pages 74 and 75.
I shall continue reading the last paragraph.
General Foertsch did not restrict himself to show only outwardly his hostile attitude concerning the Nazi system, nor his discontent regarding the measures of the supreme political and military command to his subordinates in the staff, but he also made at every opportunity constructive suggestions concerning the pacification of the South-Eastern area by measures with which the prosecution presumably could not find fault. It was clear to Foertsch that a more insubordination, or a request by his supreme commanders for insubordination, could not in the least change the plans of the highest leadership, nor their execution. He therefore had to restrict himself to make suggestions, or to say it mere precisely: to recommend to his superior commander to make suggestions to the OKW; their aim being to reinforce the military occupation of the country, and to stabilize the political and economic conditions to the satisfaction of the population. I have proved that General Foertsch, as Chief of the General Staff, had neither the power of command nor the decisive influence in the sense of criminal causality to commit the crimes alleged by the prosecution, or to be possibly responsible for their commission by others. The same applies of course positively to his attempts to create other basic conditions, and to make thereby superfluous measures which have now become the subject of the indictment. Consequently, has intervention for a "good purpose" was narrowed down by the limits of his authority as Chief of the General Staff. That he nevertheless always tried again to eliminate by constructive proposals the situation of constraint under which his superior commanders had to act, proves unequivocally that he was not the "Firebrand" as alleged by the prosecution.
In this connection I refer to the following evidence submitted for the defense of General Foertsch:
I shall continue on page 63, the heading of "3".
To 3) However, General Foertsch did not rest satisfied with stating his dissatisfaction to the Supreme Command nor with making constructive proposals to improve the situation by peaceful means but he also acted in complete agreement with the commands of humanity in every case where the general force of the circumstances, the orders from above and the natural limitations imposed upon him by his position as chief of staff left him the slightest opportunity to do so.
From the evidence submitted for this purpose I respectfully refer the Court to the following passages:
And then follow some quotations. I shall continue reading on page 65, after the beginning of the second paragraph.
5) Quite a different conclusion might be arrived at according to my argumentations to 1, 2 and 3: Whoever had manifested such an opposition to the ideology and the policy of the National-Socialistic State and who had also educated his fellow-officers, whoever had made such efforts to remove, by constructive proposals, the causes of a condition, which by necessity must lead to reprisals and he, who had acted in the described manner in the cases where he had not been under constraint, could not have been an "incited" (Schermacher) in advising his superior commanders nor could he have influenced them in the manner asserted by the prosecution.
I shall continue reading on page 67, paragraph "E".
E. A comparison of the position of General Foertsch as Chief of the General staff South-East on the one hand, and the authorities of the Chief of the Wehrmacht Operational Staff, Jodl, on the other hand.
The argument of the prosecution runs as follows:
Keitel and Jodl were also only chiefs of staff and yet they were sentenced to death by the IMT. As simple as this conclusion is, it is nevertheless false.
1) Keitel:
The following passage in the statement at the beginning of the IMT verdict seems to speak for the opinion of the prosecution: