"Keitel did not have command authority over the three Wehrmacht branches, which enjoyed direct access to the Supreme Commander.
OKW was in effect Hitler's military staff." IMT Trial Volume I page 288; page 16549 of the German Transcript" Further down in the opinion it is being stated, however, that Keitel himself had issued fundamental orders, for instance, the reprisal order of 16 September 1941 and the so-called "Night and Fog" decree of 7 Dec.
1941, and others.
The evidence of the prosecution in our trial contains many other examples of Keitel orders of a fundamental nature, orders which a chief of staff of a command authority, be it an army or army group, may not issue. Not only the contents of the Keitel orders, but also their exterior make-up, is proof of the fact that Keitel had quite other authorities, which cannot be compared with those of a chief of staff like Foertsch.
I shall omit the following quotations, and continue on page 71, at the bottom of the page, paragraph 3.
3) Keitel and Jodl:
Both belonged to the inner circle of Hitler's confidants, both of them were called upon, as military experts, to assist in implementing the political objectives of Hitler. Their qualifications alone enabled Hitler to carry out his intentions. Foertsch, on the other hand, was advisor and assistant to military experts who, moreover, had much more experience than he had.
In conclusion it is to be added that Keitel and Jodl were also sentenced above all for having been principals in the conspiracy to wage a war of aggression and for waging this war of aggression. A comparison between them and Foertsch cannot be made also for this reason.
Part II The individual counts of the indictment.
In every one of the four counts the Prosecution starts from the principle that the crimes which they assert to have been committed, were committed by troops who were subordinated to the authority of the Field Marshals and Generals on trial here, including also General FOERTSCH.
These troops were allegedly responsible to them and their actions were in conformity with orders issued, executed and passed on by the latter. I believe I furnished convincing proof that the troops in question had not been subordinated to General FOERTSCH, that he had no authority over them, that they were not responsible to him and that he had not issued any orders. Apart from his participation as an advisor, which has already been dealt with in detail in Part I, the question remains, whether FOERTSCH did not render himself liable to punishment by executing order or passing orders on to others, without having any authority himself. However, the Prosecution has not followed this trend of thought at all. The formulation of the introductory sentences in the counts of the indictment (Number 1, 7, 11, 14 of the indictment) reveals clearly that the authority of command of the defendants is the decisive factor and that they are to be called to account for the "execution" or "transmission" of orders only if these orders were actually carried out by troops subordinated to them. The indictments and verdicts in other trials before the Nuernberg Military Tribunals show again and again that the responsible persons in the leading positions are to be prosecuted and also in our case General TAYLOR emphasized in the opening statement that the men in the dock were "commanders of high rank" who are being held responsible for crimes and who would have to be acquitted if their responsibility could not be proved fairly. (German transcript page 11).
From this it must be inferred that a mere "transmission" of orders which was more of an office procedure - with the transmitter having no authority of command over the parties receiving orders, cannot render General FOERTSCH responsible according to penal law. The Prosecution's conception of the "execution" of orders is not absolutely clear, because after all, they could in part only be carried out by the subordinated troops - for instance neither the Commander in Chief nor the Chief of Staff themselves shot hostages.
Probably the routine treatment of the OMW orders or demands made by the Commanders in Chief and their formulation into orders for subordinates is meant. This activity however if considered from the same point of view as General TAYLOR's - cannot be judged, in respect of "responsibility", in any other way than as a transmission of orders which were already drawn up. Also in this case FOERTSCH, by participating in the formulation of the orders, could only be responsible for an order, that is, for expressing his will, if the order was given to troops which were subordinated to him. That, however, was never the case.
Thus the formulation and the general tendency of the indictment reveals that in the case of General FOERTSCH it starts from a false hypothesis if it considers him guilty of the alleged crimes included in the individual counts. It is false, because the Prosecution failed to recognize the basic problem in the case of FOERTSCH: his position as Chief of Staff.
If, in spite of that, I now discuss in detail the individual counts and therefore also the documents presented against FOERTSCH, I do so, because it is my duty as defense counsel to take those precautionary measures under all circumstances. At the same time this scrutiny of the documents concerning FOERTSCH gives me the opportunity of illustrating on the basis of just this material, that my previous arguments pertaining to General FOERTSCH's responsibility as Chief of Staff are also confirmed by the given facts as revealed in the Prosecution documents.
Now, if the Tribunal please, I shall only present a few of the documents contained in Part II of my final plea. I choose those to which the Prosecution has in particular referred, in their closing statement. And I should be obliged if the Tribunal would give judicial notice to the balance of Part II which I have so far omitted.
I will continue reading on page 80:
(8) b) 1. Exh. 19, Doc. Book I, page 49 German, page 68 English.
This document contains a report dated 16 July 1941 made by Corps Headquarters LXV to the Wehrmacht Commander South East, on the attack on General LONTSCHER's automobile. This report bears FOERTSCH's handwritten annotation, written on 19 July 1941 "What counter measures? Why no hostages in Valjevo?"
The fact that the annotation bears the form of a question shows that it was a request for information, and that consequently it is not an order.
This inquiry was addressed to the competent I c expert in his own staff, as General FOERTSCH stated in his examination on 10 October 1947. The purpose of the inquiry, was explained by FOERTSCH in the same protocol on the same page. It was to be expected that the Wehrmacht High Command would not be satisfied with a mere notification of the attack, especially as the object of the attempt was a high-ranking officer, and that they would immediately make inquiries. It was therefore necessary to clear up everything as far as possible prior to the dispatch of the notification.
However, this annotation was not the cause for the reprisals actually executed in connection with this attack. So much FOERTSCH clarified in his statement of 10 October 1947. I refer in this connection to the protocol pages 40,58/59 German, pages 4132/33 English. According to an entry in operational report No. 1 by the 704th infantry division, contained in document exh. 23,52 Communists had already been shot by Serbian gendarmes on 20 July 1941 by order of Military Administration Headquarters 816 Uzice as a reprisal for the reported attack.
Considering the time which elapsed between the dispatch of the report on the attack, and its arrival and subsequent submission to the armed forces Commander South East - all of which can be seen from document exh. 19 - it is impossible that the inquiry, addressed to the Staff I c, concerning this report, could have been instrumental in the issuance of the order which Military Administration Headquarters Uzice gave on 20 July and which had already been executed at that time.
Up to the time when Military Administration Headquarters actually gave the order, the latter could not possibly have known of such an inquiry, even if it is assumed that the I c attached to the Staff of the 12th Army should have passed the inquiry addressed to him to subordinate offices.
I shall continue reading on page 84, toward the bottom of the page. I am now talking about Exhibit 100B 27; that deals with the Skela incident.
(9) b) 10. Exhibit 100b 27, Document NOKW 1637, Doc, Book III.
This document contains among others an excerpt from the record of an interrogation of Oberregierungsrat KIESSEL before the Yugoslav "commission for the Ascertainment of Crimes of the Occupational Organs and Their Accomplices" in connection with the Skela-case.
The relevant statement of the witness KIESSEL, contained in this record, reads as follows:
I shall omit the quotation which you know, and continue after the end of the quotation.
The statement of witness KIESSEL copied above from the excerpt of the record has no probative value whatever. KIESSEL was not interrogated as a witness, but evidently as a defendant in an investigation procedure which was also directed against himself. Consequently he has neither corroborated his statement by oath nor by an affidavit.
Inasmuch as this statement deals with the exercision of influences on the part of the Chief of the General Staff of the Wehrmacht Command South East it must be pointed out that KIESSEL did not base his report on personal experience, but only on hearsay. I have emphasized the pertinent remark in the above reproduction by underlining it.
This part of KIESSEL's statement clearly shows that he is merely repeating something which GRAVENHORST allegedly told him.
This statement which the witness attributes to GRAVENHORST - and if it really was made - did not correspond to the actual facts in any one case.
This is revealed as follows: The Armed forces Commander South East was informed of the attack in Skela through the daily report of the Commander of Serbia, dated 15 August 1941. The text of this daily report reads Exh. No. 127, Doc, Book V, page 37 German, page 33 English.
"Teletype HDVL. No. 7688 15 August 14.45 DSZ To: Wehrmacht Commander South East (12 Army 1c/AO Daily Report:
1.) On 14 August 1650 hours, bandits shot with machine guns at a passenger car of the 3rd Reserve Police Battalion 64 (Passengers: 1st lieutenant EHRMANN, 3 sergeants) near Skela (15 kilometers West of Obrenovac) on their way to Sebac. A patrol found the burned-out passenger car. A company of the police battalion sent from Belgrade found the corpses of 1st Lieutenant EHRMANN and 1 sergeant in the Save, two sergeants wEre missing. On 15 August Skela will be burned down and 50 Communists from Belgrade will be hanged there."
THE PRESIDENT: We will take our morning recess at this time.
(A recess was taken.)
THE MARSHAL: Persons in the Court will please find their seats.
The Tribunal is again in session.
DR. RAUSCHENBACH: I shall continue on page 86, the last paragraph, after the end of the quotation:
"The report shows that when the assault was reported, the order for reprisal action which had already been issued, was specifically mentioned at the same time. Therefore it is impossible that the Wehrmacht-Commander Southeast exercised any influence on the issuance of this order through General Foertsch as Chief of the General Staff, for he only heard of this assault after the order for reprisals had already been given. In this connection, I furthermore refer to General Foertsch's statement in the record dated 13 October 1947.
"According to that, one must arrive at the conclusion that the reprisal measures which were taken in Skela had not been ordered by the Wehrmacht Commander Southeast. Therefore it is out of the question that General Foertsch as Chief of Staff can be held responsible as an advisor when such an order was issued."
I shall continue on page 123, in the middle of the page, (c), "Commando Troops."
Your Honors, my statement about the Commando Order extend to about ten pages which I shall also omit. These are a number of quotations. The whole problem is very complicated and will probably become clearer when you read it slowly. I would just like to refer to the importance of the paragraph because there is no high commander in the dock who could have commented on this order, and, since I gained the impression from the trial that the conduct of General Foertsch, just from this point of view, has to be examined very thoroughly.
This shows that the Commando Order was never carried out in the way in which it was issued, namely, by slaughtering the prisoners. The viewpoints which seem to show that it might have been carried out later come from a time during which General Foertsch was no longer in the Southeast.
As far as the Commando Troops are concerned, other orders had already been issued which had broken the connection in the causal effect between this and the later orders.
I continue on page 145, "Part III: Legal Questions and Final Statement."
"As regards the special legal problems of this trial-hostages, reprisals, unlawfulness of aggressive war, plea of acting on superior order - I refer to the argumentation of my colleague Dr. LATERNSER. By the following statement I only wish to supplement them in regard to several legal questions which appear to me to be relevant, as they have some bearing on the case of General FOERTSCH under an aspect other than that discussed previously. I will refrain from questioning the competence of this Tribunal, because all that was necessary in this connection has been dealt with by DR. LATERNSER as well. As a precaution, I raise objection against the jurisdiction of this Tribunal in the case of the defendant FOERTSCH as well."
Then, I shall continue on Page 151, (2) at the top:
"The unclear definition of 'facts' of Control Council Law No. 10. In particular, provisions concerning parties in crime."
I do not want to repeat here those objections to Control Council Law No. 10 which have been put forward by the Defense in all Nuernberg trials. But I deem it necessary to examine this law from the point of view of an exact establishment of guilt in criminal cases.
The definition of the facts of Article II, paragraph 1, is worded in rather general terms. The paragraphs b) and c), pertaining to our trial, partly mention criminal offenses which are included already in all criminal codes, as for example murder, deprivation of liberty and destruction. In part, however, they also include concepts which so far have not yet been mentioned in any criminal law, or which, though related to a certain crime, expand its definition in such a general way as to make the limits of what is punishable no longer recognizable. These concepts include, for example, "plundering", which in itself includes the crime of theft but which can also be interpreted far more comprehensively, for instance, by including all acts preceding and following theft, even if they do not fall into the category of any of the criminal laws hitherto in force.
"Persecution for political, racial or religious reasons" also was thus far not to be found in any criminal code. In the case of other crimes, as e.g. the "killing of hostages", Control Council Law No. 10 alone does not give any indication as to punishableness, but makes it necessary, by taking recourse to other provisions of international law - particularly to Martial Law -, to first establish the requisites under which the killing of hostages constitutes a crime.
The vagueness of the definitions of those participating in crime as specified in Article II, paragraphs 2 under c) to f) appears to me particularly serious, however. According to them, that person is considered guilty of a crime pursuant to Article II, subsection 1, who
c) took a consenting part therein or
d) was connected with plans or enterprises involving its commission or
e) was a member of any organization or group connected with the commission of any such crime or
f) with reference to paragraph la), if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held a high position in the financial, industrial or economic life of any such country.
It is difficult particularly for the German lawyer to make himself familiar with the forms of participants in crime as mentioned above. The German criminal jurisdiction, and in accordance with it probably, the entire continental penal law, - systems provide only for: principal accomplice, instigator, and in certain cases as an independent offender, the abettor. These are the definitions of participation in crimes as under 2 a) and b) of Article II. At any rate a) and b) presuppose the commission of a crime in which some-one by his own activities, or negligence counter to his duty, constituted an indispensable cause (conditio sine qua non) for the success of the crime, and this knowingly.
These conditions for any crime, namely a causative incriminating action or omission, cannot be discerned at once in the sub-sections c) through f). Therefore, the following alternatives therefore result: Either the Control Council Law has established forms of participation which neither exact that the perpetrator provided a "conditio sine qua non" for the successful committing of the crime, nor that the respective deed or omission should be imputed to the amount of guilt; or the forms of participation as in subsection c) through f) must be measured by the same standards as those mentioned in subsections a) and b).
The judgments of the Nuernberg Military Tribunals which were passed hitherto, are an unmistakable proof that the second alternative has been adopted. Some more quotations from the judgments of Military Tribunal I in the case versus Karl BRAND et al, and of Military Tribunal II versus Erhard MILCH disclose that, in contrast to the opinion of the Prosecution, the Nuernberg Military Tribunals have taken the viewpoint that a causative and responsible deed or omission is indispensable also as regards sub-sections c) through f), and that the fact of merely consenting to, or being connected with the crime is not sufficient proof that a defendant actually participated in the same.
In the "Specific Opinion of the Judgment", as pronounced by Judge MUSMANNO in the Erhard MILCH case (page 92 through 94 of the German transcript), some principles were stated which disclose that, exactly as in the criminal codes of he continent, nobody shall be punished unless he provided a cause for the crime intentionally and deliberately, which means guiltily criminally. Particularly high standards are exacted by this judgment as to the "knowledge" and the "responsible power" of preventing the committing of the crime by others. I want to quote verbatim the following sentence because it is particularly characteristic:
"One can easily reach the hypothesis of guilt from the documents and testimony but that hypothesis in many of its phases is also consistent with innocence."
And also below on page 93:
"Remarks such as "the defendant must have known" or "to the best of my knowledge he knew", and other similar inconclusive conjectures frequently used in this part of the case are not the kind of links which are imperatively needed to make up a chain strong enough to sustain the weight of a conviction."
In the case versus Karl BRAND et al, the Military Tribunal (l) acquitted some defendants although an express statement was made to wit that these defendants were fully informed about the criminal experiments and were connected with them by way of discussions and certain correspondence; they were acquitted because it had been impossible to establish beyond any doubt any personal and causative actions which contributed directly to the realization of the criminal facts, nor any omission of taking steps to prevent the criminal experiments, steps which would have been possible thanks to the official position of the defendant. I refer to the opinion on the judgment as regards the Defendants ROSTOCK, POPPENDICK and BLOME.
Within the framework of this plea, it is impossible for me to quote the numerous proofs which result from the other judgment of the Nuernberg Military Tribunals, proofs which make it a condition that nobody must be convicted unless his causality and personal guilt have been proven beyond any doubt, even if he seems to meet objectively all external conditions which are required by the subsections c) through f) of paragraph 2 of Section II of Control Council Law No. 10. In addition, I briefly refer to the Judgment of Military Tribunal IV in the case versus Friedrich FLICK et al which also proves that very high standards are applied to the establishment of causality and guilt, standards which are basically the same which we are accustomed to find in German Criminal Law. This completes the circle. In its beginning stood the finding of the Judgment of the IMT, as follows:
"It is one of the most important of such principles that criminal guilt must be a personal guilt also, and that mass punishment must be avoided."
What conclusions then must be drawn from this in the case of General FOERTSCH?
In Part I of my Plea I have proved that FOERTSCH, already on account of his official position as Chief of the General Staff could not, and actually did not, provide any causes for the committing of the alleged crimes against the laws of war and humanity. I have elucidated this fact in part II of my plea on the basis of the counts of the indictment and of the documents of the Prosecution. The analysis of Section 2, paragraph 2 of Control Council Law No. 10, combined with the judgment of the Nuernberg Military Tribunals, as effected hitherto, also discloses that this law, if interpreted correctly, likewise exacts in all cases of its application that both prerequisites, causality and guilt, must be fulfilled if the defendant is to be convicted. The fact that as Chief of Staff General FOERTSCH had to orientate and advise his Commanders-in-Chief and had to direct the work of the Staff.
the fact that he initiated drafts and in connection with current matters personally wrote letters to subordinated offices and the fact that as Chief of the General Staff he held a high military position are not sufficient for the sentencing of General FOERTSCH and objectively constitute cases d) to f) of Article II, Paragraph 2 Control Council Law No. 10.
Nor is Case c) present in the case of FOERTSCH, because, apart from the fact that the Prosecution has not proved his consenting part but, on the contrary, that his negative attitude has been proved by me, a causal criminal action or commission would also be necessary, apart from the more consenting part, in accordance with judgments regularly passed up to now by the Nuernberg Military Tribunals in order to prove participation in a crime.
The verdict of Military Tribunal IV in the case against Friedrich FLICK contains a passage which can be exactly adapted to the defendant FOERTSCH and which in some measure instantly clarifies the main problem in the case FOERTSCH in the light of the judgment of a Nuernberg Military Tribunal and which clarifies the sense of the types of participation c) to f) in conformity with the verdicts of cases I and II.
The quoted passage deals with the activity of the acquitted defendants BURKART and KALETSCH, as well as the defendant WEISS who was not sentenced in connection with the case in question.
"...They furnished him (FLICK) with information and advice.
But the decisions were his. He alone could gain or lose by the transaction. They did not conspire with him or state officials in any plan of "systematic plunder". We cannot see in their conduct any culpability for which they should now be punished."
Before I continue on Page 158, Your Honors, I take the liberty of interpolating Pages 144a to 144c. This is "The Answer to the Speech of the Prosecution," Page 144a:
The statements made by the Prosecution have caused me to supplement my final plea on a few points, and to correct certain assertions made by the Prosecution.
1.) The Prosecution has endeavored to dispose of the objection made by the defense with reference to the absence of the defendant from the South-East by quoting the example of the time-bomb. This comparison however, cannot apply to General Foertsch. It would apply, and Foertsch would be responsible for results of a criminal nature which would have occurred during his temporary absence or after his transfer, if he himself had been the initiator of the affair during his presence. But the Prosecution failed to prove just this point in particular. And so for instance the Keitel order of 16 September 1941 is irrefutably the first initiative for the crime alleged by the Prosecution. Just at this time Foertsch was on leave. I have already expressed my opinion to the conscquences of the Kommando order after his transfer.
2.) The Kommissar order cannot incriminate him, because Foertsch was not assigned to the Eastern theatre of war until 1944. At that time the commissars had already been removed by the Red Army and the Kommissar order rescinded.
III. When characterizing the responsibility of all defendants the Prosecution stated that all of them had held the rank of at least a Major General and were in command of from 50 - 100,000 men. But Foertsch was only a Colonel when he became Chief of the General Staff of the 12th Army and later in the South East he never exented any authority other than over his own staff, that is to say only over a very limited number of officers and men.
IV. The Prosecution quoted wrongly from General Foertsch's testimony when it stated that Foertsch only considered military expediency as being decisive for the German Wehrmacht in the South East and not the Hague Convention for Land Warfare.
It obviously meant the direct examination of Foertsch concerning the question of recognizing the partisans as belligerents. Foertsch said something entirely different:
The partisans were not recognised as belligerents, but for reasons of expediency they were to be regarded as prisoners of war (Prosecution Exhibit 302).
V. The Prosecution placed special responsibility upon General Foertsch for measures against Jews and for concentration camps in the South-East. Not one iota of proof was furnished for this allegation. With regard to the Einsatzstab Rosenberg and the reception camps I have expressed my opinion while discussing the documents to be submitted. I only rejected as essentially untrue and unproven, the incorrect assertion of the Prosecution that Foertsch had been particularly well informed about Jewish measures and concentration camps because the officers to whom the execution of these measures was entrusted were subordinated to him.
VI. Above all, the Prosecution attempted to shake the defense on the basis of Foertsch's position as Chief of General Staff. With regard to this I must correct the following:
1.) Foertsch never contended that he was only a letter carrier or something similar. The importance of a General Staff officer and above all the importance of the Chief of General Staff with respect to military matters is clearly revealed by the hand book for the General Staff. However the decision always rested with the Supreme Commander and the Chief of Staff did not have the authority to issue orders; thus be neither had the authority to impose punishment.
2.) The assertion quoted by the Prosecution contained in a letter of the XV Mountain Corps to the "Prinz Eugen" division: Guilt is also shared in general by older General Staff Officers", voiced a private opinion in a special case and may hardly be evaluated as the statement of an expert.
3.) Neither does it incriminate the Defendant Foertsch, if the Chief of Staff to the Defendant Dehner should have exceeded his authority as Chief at one time.
4.) The Prosecution states, that the Chief of the General Staff had disciplinary power over a Divisional Commander. In reality the Chief of Staff had disciplinary power only over his own Staff, and this disciplinary authority with regard to its nature and extent was the same as was exercised by a Divisional Commander over his troops.
5.) The Prosecution has attempted to discredit General Foertsch, by referring to a passage in his book, where he stresses the "Joy of holding responsibility". Foertsch expressly admitted this point in his examination. He never refused responsibility in his province, namely for his Staff. The same applies also to his activities later on as Divisional Commander, Commanding General and Commander in Chief of an army. However for this period the Prosecution has not raised any charges against Foertsch.
6.) Finally the Prosecution reasoned that the legal position of the Chief of the General Staff was unimportant because through his long years of activities Foertsch has in any case somehow participated in the crimes mentioned. The Prosecution thus attempts to evade the precise question as to elements of guilt, which are necessary for the purpose of passing sentence."
And the last sentence will be changed:
"I have just discussed this problem."
I shall continue on page 158.
"International Criminal Law" is, at least as far as its application is concerned, a new field a law. The trial of Goering and Others before the International Military Tribunal, Nuernberg, comprise the initial phase of its development. This trial in turn is based on the "London Agreement" and the "Statute of the International Military Tribunal". The objections voiced by the Defense and in the literature on International Law against these proceedings, which were based on the principle "nullum crimen sine lege", were overruled by the IMT and, subsequently by the Nuernberg Military Tribunals on the grounds that the contents of the "London Agreement" and the "Statute" as well as of Control Council Law No. 10, represent merely the codification of International Law which had already been in existence at the time the acts in question were committed.
Even if one takes the point of view that the above-mentioned laws do not violate the principle of "nullum crimen sine lege" and the injunction against an "ex post facto - verdict", there still remain numerous problematic questions because in this new field of administration of justice experience has to be made and precedents in the judiciary have to be established before clearly outlined specifications as to criminal acts can be given, as is the case with internal criminal law. Moreover, to be at all effective, "International Criminal law" must be observed by all civilized peoples and must be enforced without regard to the nationality or rank of the person in question. At present, international criminal law is only applied by victor-states in proceedings against subjects of vanquished states, and well known events all over the world prove that the theoretical development of the law which started with the statute and the verdict of the International Military Tribunal has not yet asserted itself in practice.
It is not within the scope of this final plea to pursue the profound problems arising from international criminal law and its enforcement. However, the following must be kept in mind if a correct attitude is to be taken in judging the case Foertsch.
The standards of justice as applied by international criminal law are still in a state of development and therefore as yet so undefined - above all, they were hardly perceivable at the time relevant to this case - that in finding a verdict here the greatest caution should be applied. That requires first of all that all the provisions which exist that far in the field of law:
"International Criminal Law," be interpreted in a restrictive way. Besides, it must be taken into consideration that, as far as the indictment for war crimes is concerned, the relevant provisions - Laws and Customs of Land Warfare, Hague Convention 1899 and 1907 - were compiled at a time when the conception of "Total War" was unknown and the modern development of weapons could not be foreseen.
Thus it is doubtlessly unfair to expect here of the defendants to have acted strictly in accordance with the rules and regulations of the Hague Convention on the customs of land warfare. It was also admitted in the Prosecution's opening statement that the laws and customs of war have changed. As an example for the fact that many principles of the Hague Convention on the customs of land warfare were not respected by the Allies during the Second World War, without anybody having been called to account for it, I merely quote Articles 22 - 27 of the Hague Convention on the land warfare which prove the illegality of the indiscriminate bombing of the civilian population.
How can, in such a war, individual soldiers and officers be expected to recognize at any time the boundaries of the still valid law of war? Must he not proceed from the thesis that the means and methods employed by all sides in fighting a total war, when, in contrast to all former wars, the existence of entire nations is at stake, have been intensified to such a degree that even extraordinary measures - such as severe reprisal measures in order to maintain the security and safety of the own troops in an occupied country - have become necessary and are therefore permissible? Where is he to recognize the dividing line? How high must he set the quota for reprisal measures, provided that the killing of hostages as a reprisal measure is itself permissible? Many more such questions could be posed in order to show in how precarious a legal position the defendants found themselves at that time when already a considerable part of the provisions of the laws on war had been rendered ineffective by the intensification of modern war, by all parties. That is not meant to imply that now everybody was authorized to rage unrestrainedly and unchecked.
All and everyone have been set general limits prescribed by a normal sense for humaneness. But it should prove difficult to judge afterwards if reprisal measures which were permissible in themselves were rendered inadmissible again, and thus liable to Prosecution, because of the extent to which they were inflicted. It should prove all the more difficult if one draws a comparison between them and the air raids on Germany which caused such heavy losses among the doubtlessly innocent civilian population.
4.) The application of the maxim "in dubio pro ree".
There are three circumstances then, which, apart from other complicated judicial questions of this trial (which have been discussed in detail by my learned colleague, Dr. Laternser), will render a decision of the Tribunal extremely difficult:
1) The insufficient guarantees offered by the law with regard to procedure of this trial,
2) The vagueness of the facts, as specified in Countrol Council Law No. 10, in particular the regulations concerning parties in crime.
3) the vagueness of International Criminal Law which at present is a result of the vicissitudes of Martial Law.
Hence what conclusion can be drawn, with regard to General Foertsch?
In the whole world the maxim "in dubio pro reo", i.e. in a case of doubt, judgment must always be passed in favor of the accused, is applicable. I believe that I discussed practically all actual and legal doubts, which one would have to overcome first, before sentencing the defendant Foertsch. I do not wish to repeat anything, but I want to merely point out that the vagueness of International Criminal Law and the vicissitudes of Martial Law, of which I have just spoken, would save General Foertsch from being sentenced, even if all other arguments would prove inadequate. Modern war, like an avalanche, engulfs the people, and if it is to be regarded not just as a phenomemon of nature, but one wishes to make certain leading personalities personally responsible for all the grief it has caused then such blame, as one is wont to impose, must not be extended to the soldiers themselves.