General Foertsch was only a Colonel, when he became Chief of the General Staff, Southeast. Neither before, nor afterwards did he have a position which would have enabled him to recognize the final political background of the entire events, and thus to form an opinion as to whether this war was, from the point of view of the German Wehrmacht, a right, or a wrong one. All parties conducted the war with increasing intensity and this fact made it impossible for him to recognize what parts of Martial Law, originating from the time before the first world-war, were still applicable. In addition, he himself had no cause to decide anything concerning this matter, as due to his position, he had no opportunity to interfere decisively in operations as a whole, and in the events of the Southeast theater of operations in particular.
If one considers all these facts, then one realizes that one is on unsteady ground, if one wants to establish a clear, criminal responsibility of the defendant Foertsch. In such a situation, the phrase as formulated in many verdicts of the Nuernberg Military Tribunals, is without doubt applicable, namely that a conviction is impossible, be it not for the reason that the defendant's guilt has been proved without reasonable doubt.
Final Conclusions "I just mentioned that in the case of Foertsch, so many legal doubts exist, that the Court, alone for these reasons, cannot find the accused guilty.
However, this applies only to part III of my plea, in which I discussed a number of problems which invariably occur in every one of these Nuernberg Trials, in connection with every defendant. I believe, however, that I have, in the preceding two parts of my plea, proved irrefutably, that the guilt of General Foertsch is not only doubtful but impossible.
"Of the whole of the indictment, but a few unproven assertions remain, together with the attempt to put the blame on Foertsch, quasi as a substitute for those of his superior officers, who are not in the dock.
"In summing up, may I request your Honors, to consider the whole of the evidence submitted by the defense on behalf of the defendant Foertsch, in particular the document relating to his testimony in the witness stand, as it was impossible to discuss all events in details within the framework of this plea. I would, therefore, ask you and to direct your attention in particular, to the 500 or so documents submitted by the prosecution against Foertsch, and to note that there was not one fundamental order which would prove that Foertsch exceeded his authority as Chief of the General Staff, that they did not contain one single order to subordinate troop units, and no execution order.
"I, therefore, ask you to find General Foertsch NOT GUILTY and to release him from detention."
DR. GAWLIK (Counsel for the defendant Dehner):
Your Honor, I am just informed that the German Court reporters do not have any German copies of my final plea. I would be grateful to your Honors if you would give instructions that after the recess the German court reporters should receive the German copies.
I do not know what the cause for this is.
THE PRESIDENT: Secretary-General, will you check on that please?
DR. GAWLIK: Your Honors:
"During the presentation of the evidence of the Prosecution in the trial against the South-East generals 10 Prosecution witnesses were heard.
"None of these witnesses has made any statement whatsoever by which General Dehner is incriminated.
"In particular, the witnesses von dem Bach-Zelevsky and Korn, who were cross-examined by the Prosecution in the rebuttal proceedings, have reported no acts whatsoever which could be regarded as a violation of the laws and customs of war, or violations of the laws of humanity, on the part of General Dehner.
"The Prosecution has submitted the following in evidence against General Dehner:
a) 38 exhibits during its presentation of evidence,
b) no document during the cross-examination,
c) 9 exhibits during the rebuttal proceedings.
"The Prosecution has thereby submitted 47 exhibits in all in evidence against General Dehner.
"In contrast to this the Defense has submitted 52 documents in refutation of the evidence presented by the Prosecution.
"Of the exhibits submitted by the Prosecution, Exhibits 315, 297, 310, 316, 351, contain no facts at all which could even remotely be considered as incriminating General Dehner.
"The remaining exhibits are mainly daily reports and other teletype messages from army offices.
"These documents have no evidential value at all, for they violate generally recognized rules of procedural law in all civilized States, recognized rules which must be taken into consideration even in this trial, rules which must be given very special consideration if the truth is to be discovered and a wrong verdict is to be avoided.
"On the basis of this evidence, therefore, General Dehner's guilt, as alleged by the Prosecution, cannot be regarded as proven.
"To be sure, it is true that according to American law the American Military Tribunals and the American Military Commissions are not bound by all the rules of procedure which apply to American Military Courts and Civil Criminal Courts in the United States. Furthermore, it is true that according to Article 7 of Ordinance No. 7 issued by the American Military Government the Military Tribunals are not bound by the rules of evidence and that any evidence is admissible which appears to have probative value.
"This provision, however, cannot be interpreted as meaning that the Military Tribunals may disregard the recognized principles governing the hearing of evidence, recognized principles which were developed on the basis of the laws of logic in the course of centuries of legal history, principles of procedure which alone make it possible to discover the truth. Such an interpretation would deprive the proceedings. The toil and trouble which have been expended by all those participating in this trial would be in vain. On the contrary, the provision of Article 7 of Ordinance 7 may only be interpreted as meaning that the Military Tribunals are not bound by rules, the nonobservance of which does not prejudice the discovery of the truth.
"It is, therefore, general principle in the theory and practice of American Military Law that the American Military Tribunals and Military Commissions are also bound by the fundamental rules of procedure which apply to the American Military Courts.
"Furthermore, it has been expressly stated by recognized authorities that the military courts have to observe all the rules of evidence which are to be applied by the civil courts in criminal trials: To that extent I make reference to my statement in the reply to the Memorandum of the Prosecution and refer in particular to the statements on pages 2 and 3 of my memorandum."
I shall add something here:
The statements in my memorandum are given on page 4 to 11 of my final plea and they are summarized there. On these pages I have given the principles against which the evidence submitted violates. I refer to these statements here.
I also have confronted the procedure of the Prosecution with that of the defense; in this listing concerning every single document of the Prosecution. I have listed the violations against the usual procedures. This list contains a list of violations against well known procedures.
In this list numbers 1 to 5 are noted down and the numbers in this list refer to 1 to 5 on pages 1 to 9 of my final plea.
I shall continue my presentation on page 11.
As a result of my memorandum and statements regarding pages 4 to 11, the following can be established:
"The evidence presented against General Dehner is in no way suitable to be locked upon as proof of the statements contained in these documents and especially not as proof that the facts contained in the reports actually occurred."
I shall skip the next paragraph.
"The evidence presented is, therefore, insufficient to warrant a conviction of General Dehner. One is especially incapable of ascertaining, on the basis of this evidence beyond any reasonable doubt, that General Dehner committed war crimes or crimes against humanity.
Therefore General Dehner has to be acquitted already for this reason alone, that the document material presented violates several principal rules of evidence, so that by reason of this evidence it cannot be looked upon as conclusively proved that General Dehner incriminated himself in the sense of the indictment.
"With these statements I could conclude my plea, for every defendant is favoured by the legal assumption of innocence until proved guilty by the prosecuting authorities"-- and this means by suitable, genuine evidence.
And this has not been proved, as I have explained in detail.
The defendant is under no obligation to prove his innocence, it is rather the task of the prosecuting authorities to prove the defendant's guilt.
But I consider it my duty as defense counsel to assume in the continuation of my plea that the evidence presented is of full value as evidence, and on the basis of this supposition I will examine the facts in their actual and legal aspects.
In my further statements I shall, whenever possible, observe the order of the indictment and state my point of view in regard to each of the four counts of the indictment. I shall, therefore under Part I, state my point of view in regard to all charges which refer exclusively to Croatia. Under Part II, I shall discuss all other charges.
Part I The Prosecution has based its indictment on violations of the laws of warfare, especially on violations of the Hague Law on Land Warfare.
General Dehner is first of all called to account for the activity of German troops within the area of the 69th Reserve Corps in Croatia, during the time from August 1943 to March 1944. But the position of the German troops in Croatia was different from that of the German troops in other parts of the South-Eastern territory.
"This becomes also especially evident by the War Diary entry of the 2nd Panzer Army dated 9 September 1943 -- offered by the Prosecution in the rebuttal evidence proceedings.
"The real facts in the proceedings against General Dehner are therefore to be judged in a different manner as these of the other defendants, with the exception of the defendants Leyser and Rendulic, insofar as in his case the Croatian area is subject of the charges made against him.
"Evaluation of the real facts depends first of all on the decision about the question which has to be asked previous to this, namely, what the position of the German troops was in Croatia, and whether the laws of warfare are to be applied to the relationship of the German troops to the bandits active in this territory, and especially whether the norms of the Hague Convention on Land Warfare, or whether merely Croatian internal law is to be applied.
"The decision in regard to this question touches at the same time the competence of this Tribunal, for according to the decision rendered by Tribunal IV this Court is an International Court obliged to apply International Law.
"Based on the literature of International Law, I have in detail stated in my legal brief which prerequisites would have to be met in order to have Croatia considered as an independent State in the sense of International Law. In this respect I refer to the statements made on page 10 to 12 of my brief. I so not intend to repeat these statements here, but will only state the five prerequisites which will have to be met in this case:
1) There must be a national population.
2) There must be a national territory inhavited by the national population.
3) There must be an organized government capable of exercising sovereignty inside of this territory.
4) This government must be able to take up international relations with the other States and
5) the population must have reached such a degree of civilization that it is capable of observing International Law.
"There is no doubt about the fact that the conditions as to 1, 2 and 5 had been fulfilled. The Croatian people and the Croatian State territory was in existence. The population had also the degree of civilization required.
"All further conditions demanded by the science of International Law were also met. Croatia had an organized government which exercised its sovereignty in Croatia and one which watched with an eagle eye that its sovereignty was not impaired. In this respect I refer to the Dehner documents presented, namely:
"Affidavit by Von Strachwitz, Engelschall, Selehow, Von Beer, Kaudewitz, as well as the entry in the War Diary of the 69th Reserve Corps dated 3 March 1944.
"Croatia was also able to take up international relations with other States. This is especially shown by the fact that the Croatian State kept up relations of this kind. Treaties were concluded with other States, as, for instance, with Switzerland. So, for instance, a commercial treaty was concluded on 10 September 1941 between Switzerland and Croatia."
I shall continue on page 15.
"The Prosecution has repeatedly made the assertion in this trial that the Croatian State was a Puppet State. This assertion of the Prosecution is irrelevant, in the first place, for the sovereignty of a State does not demand complete independence. Even a state which is dependent on another, that is, to use the words of the Prosecution, a puppet state, is a state in the sense of international law. Insofar, I refer to my statements on page 13 of my Memorandum where, in particular, I specified examples for sovereign states in the sense of international law, which are more or less dependent on other states, and are or were under the influence of these states.
"Does the Prosecution wish to deny the rights of a sovereign state to the present day states of the so-called Eastern Bloc, that is, Poland, Jugoslavia, Roumania, Hungary, Bulgaria and Albania, which, to a very large extent, are dependent on Soviet Russia -- states which are even represented in UNO as independent states?
"This view represented by the Prosecution overlooks, in particular, the fact that the world is at present in a state of transition which cannot be disregarded by international law either.
"A new world picture and historical picture is conceived in the making. The System of history which up to now was based on the free rivalry of numerous big and small continuous states seems to be coming to an end. National sovereignties are experiencing ever greater limitations in favour of structures and forms transcending nationalism. This is a phenomenon which did not first appear after the second World War but this development began already even many years ago.
"This development already recognized by international law cannot be disregarded either by this court.
"Moreover, the assertion of the Prosecution that Croatia was a puppet state is incorrect. The inaccuracy of this statement is seen in the already mentioned affidavits of Strachwitz, Selchow, Engelschall, Kaudewit, Beer, and the entry dated 3 March 1944 in the War Diary of the LXIX.
I shall skip the next two paragraphs where I discussed the question whether an independent Croatian State would be possible before the war and I shall skip the next paragraph where I discuss the question of recognizing this state and continue on page 17.
What is the result of this finding?
It results that the forces of the LXIX. Res. Corps in Croatia were not an occupying power in the sense of international law, but forces in a country on friendly terms with Germany. Relations therefore between the troops of the LXIX Res. Corps and the Croatian population were not regulated by the rules of the Articles of War, certainly not by the provisions of the Hague Convention. Germany and Croatia could rather adjust these laws quite freely by agreements of a treaty nature. The German troops had in Croatia those rights which had been conceded to them by Croatia.
It is proved that the German troops before every measure affecting the interests of Croatia or the Croatian population, sought approval of the Croatian authorities and refrained from these measures if they did not get approval.
The German troops have always taken into consideration this legal status of Croatia. Insofar as subordinate authorities exceeded the limits of their authority for lack of knowledge in individual cases the German authorities put an end to these encroachments.
The principles of the martial law, especially of the Hague Convention, are not possibly applicable neither because the bands were to be regarded as belligerents in Croatia. In my Memorandum I have shown that in recognizing rebels as belligerents distinction is to be made between:
a) recognition as belligerents and
b) recognition of independence.
I have further shown that recognition of the bands as belligerents, in accordance with the principles of international law, was already impossible fundamentally for the reason that the bands at no time exercised complete sovereignty in one sphere within the area of the LXIX Res.
Corps.
The Prosecution did not state this nor in particular has it put forward any proof for it.
Within the area of the LXIX Res. Corps, during the period when General Dehner was commanding general of this corps, the bands merely succeeded once in having possession, for a short time, of two places from which the bands had been driven again, however. Further, the bands did not meet in principle the prerequisites of belligerents in the sense of the Hague Convention because they 1.) wore no definite badge which could be identified from a distance, 2.) did not bear their arms openly, and 3.) did not observe the laws and practices of war.
In so far I refer in particular to the affidavits of Engelschall, Beer, and Kaudewitz.
Moreover, the bands appearing in the area of the LXIX Res. Corps had no centralised Command. In no way was proof offered that these bands too were under the High Command of Tito. From the documents submitted by the defense it appears rather that in many cases with these bands it was a question of entirely independent groups not subordinated to Tito. I refer here in particular to the entry in the War Diary dated 26 September 1943, Document Dehner No. 16, Exh. 10.
But even if it had been a question of bands under Tito's command this would have no significance for the state of affairs and the legal position. In this, it must be taken into consideration that it would then be a question of a rebellion of left wing circles and that this uprising was aimed not only against German forces, but also
a) against the Croatian Government which had been the governing power in Croatia since 1941, and what is of even more decisive significance in this connection,
b) against the Exile Government in London.
The bands fought, consequently, in this case, not for the rights of the Yugoslav Government in London but for the establishment of a Communist Government in Croatia under Tito's leadership independent of the Government in Exile.
Furthermore, as appeared from the hearing of witnesses, the bands which appeared in the area of the LXIX Res. Corps, fought even against the indigenous population in Croatia. The bands cannot therefore for this reason also have cooperated with the Yugoslav Government in Exile in London.
The Prosecution has, indeed in its Memorandum put forward the assertion in general that the bands in Yugoslavia acted with consent and authorization of the legal Exile Government in London and that these bands had sent reports to the Yugoslav Government in London.
This is an assertion for which the Prosecution has furnished no proof. The Prosecution has not proved that the bands sent reports of this kind to the Yugoslav Government in Exile in London and that the bands became active with the consent of this Government.
At all events, this proof was not furnished for the bands who appeared in the area of the LXIX Res. Corps.
For the area of the LXIX Res. Corps it can consequently be ascertained that the bands did not belong to the United Nations.
The Court of a State belonging to the United Nations is only competent however to reach a final decision on such actions as were against military forces of the United Nations. This is uncontested in the field of international law. This is evident especially from a report furnished by the well-known teachers of international law Dickensen, Finsch and Hyde in 1943 and appearing in the California Law Review, Volume 33 dated July 1945 on pages 217/218. These legal teachers were of the opinion that war crimes that can be prosecuted by a Court of the United Nations must be committed against the security of the United Nations.
Possible actions of the troops of the LXIX Res. Corps affecting the bands would therefore in no way have endangered the security of the United Nations; For, in so far, too, as the bands were subordinated to Tito in Croatia they were fighting against the Yugoslav Government in Exile in London which belonged to the United Nations.
The bands therefore threatened the interests of the United Nations.
The previously mentioned legal opinion was advocated too by the teachers of international law Campos, Fenwick and Costa in the report dated 30 July 1945 already alluded to by me. These teachers of international law have declared expressly, too, that under war crimes only acts against military forces or against members of the United Nations are to be understood.
Possible actions of German forces of the LXIX Res. Corps should not therefore be looked upon as violation of the martial law, especially of the Hague Convention. For this reason, these actions cannot be regarded as war crimes either.
Nor do the prerequisites for a crime against humanity exists there, either.
From the legal opinion of the well known legal teachers Campos, Fenwick, Costa, who carried out the preparatory work for the Statute and Control Council Law No. 10 in the year 1945 and have recorded the results of their labors in the report dated 30 July 1945, it is evident that the violation of the laws of humanity was to be no new independent fact of the case but that under it the most serious war crimes are to be understood. I am referring, in so far, to the report on the International Judicial Status of Individuals as "War Crimes" dated 30 July 1945.
As a result it can consequently be established:
1.) Croatia was an independent state,
2.) The bands within the area of the LXIX Res. Corps did not have the rights of belligerents.
For these reasons, the laws of war, especially the Hague Convention found no application. The actions of the German troops, therefore, cannot be regarded either as war crimes or crimes against humanity.
General Dehner cannot therefore be condemned, for these further reasons, because of all the actions of which he is accused in his capacity as Commanding General of the LXIX Res.
Corps, even if full value as proof were to be accorded to the documents submitted contrary to my statements in Part I.
However, even if Croatia should not be recognized as an independent state in the meaning of international law, even if it should be conceded to the Prosecution that Croatia was dependent on the Axis powers to an extent excluding her independence, if Croatia thus was, in the words of the Prosecution, a puppet state, even so, one thing cannot be denied, namely the fact that Croatia was considered an independent state and treated as such by the German troops, furthermore the fact that the German troops did not exercise executive power in Croatia, but that the executive power was exercised by Croatian authorities, and further the fact that General Dehner did not exercise supreme executive authority in Croatia. These facts cannot be denied by the Prosecution either. These facts must be admitted, even if for some legal considerations the existence of an independent Croatian state should be denied.
Therefore General Dehner in no way bears responsibility for what has happened within the area of his Corps. In particular General Dehner is not responsible for the acts for which he is charged under figure 1, 2 and 4 of the indictment, if they should be proven. These charges under figures 1, 2 and 4, referring exclusively to Croatia, I shall deal with first of all. These acts were not ordered by General Dehner. Furthermore it has not been proved that these acts were committed at all by the troops of the LXIX Res. Corps. They were if they should have happened at all, ordered and executed either by Croatian authorities, not subordinated to General Dehner, or by Police authorities, over which General Dehner had no authority either. This follows from the entry into the War Diary of the 2nd Panzer Army from 9 Sept. 1943 (Doc. NOKW 2632, Exh. 655). From this entry it follows that particular conditions prevailed in Croatia and therefore the military authorities did not have the authority of a Military Commander.
From the fact that reprisal measures were reported in the daily reports of the Corps does not follow, therefore, that they were carried out by the troops of the Corps. The divisions and the Corps reported everything that occurred within their area. I refer in this connection to the affidavit Engelschall. Engelschall has declared that all reprisal measures were reported by the Divisions, regardless whether they had been ordered by the Division Commanders or carried out by the troops. These statements of Engelschall concur with the entry in the War Diary of 18 January 1944. I particularly refer to the fact that in this entry the words "subordinated to the Corps" were added by the German divisions and that this addition is not to be found with the Croatian units and Police units. This proves that the Croatian units and the Police units were not subordinated to the LXIX Res. Corps.
The Generalkommando of the LXIX Res. Corps was not the highest authority within its area.
The Croatian Civil authorities were not subordinated to the LXIC Res. Corps. The German police units, who were in Croatia for the support of the Croatian Government, were not subordinated to the Corps either.
The contrary does particularly also not follow from the statements of von Bach-Zelewski and Korn. None of these two witnesses has testified that the police units employed in Croatia were subordinated to the LXIX Res. Corps.
I am interpolating something. Korn did not state that the police unit were subordinate to the army. This claim of the Prosecution in their final statement is incorrect and completely invented. Korn, on the contrary, stated that he had no comprehensive knowledge about the police missions in Croatia. In this respect I refer to page 9363 of the English transcript. The statement of Korn has expressly stated and I quote: "I only know of two operations - page 9368 of the English transcript. If Korn participated in one of these operations that one of these operations was the operation "Ferdinand" which took place under the direction and power of Commander of the SS Major General Kommer.
The 69th Corps and divisions under its command had no power of command in this operation. This has been expressly confirmed by Korn and is on page 9483 of the English. The other operation was the operation "Arnim". The statement of Korn refers to this operation "Arnim". Korn could not make statements about any other operations. On page 9368 of the transcript he expressly stated, "I can merely make statements about the main operations in which I participated. The statement of the Prosecution in reference to the statement of the witness Korn are therefore completely incorrect. I shall continue on page 25.
In the case of Bach-Zelewski there is not enough knowledge available for making statements relevant to the evidence thereof. For according to his own statements Bach-Zelewski stayed only for one day within the area of the LXIX Res. Corps. His statements based only on hearsay refer exclusively to the operation "Arnim".
This operation "Arnim" lasted for only 4 days. It started on 14th October 1943 and ended on 18th October 1943. None of the documents submitted shows that during this 4 day operation any act was committed, which is subject of this proceeding.
This operation "Arnim" must be distinguished from the operations "Kornblume" and "Ferdinand", which were pure Police operations.
I shall interpolate once again. The operation "Kornblume" did not at all take place during the time in which General Dehner was in Croatia. I shall continue on page 26.
The operation "Ferdinand" was directed by SS-Gruppenfuehrer Kammerhofer independently. This was testified by the witness for the Prosecution Korn (Protocol Page 9363). The witness Korn testified further to the effect that Kammerhofer was not subordinated to the LXIX ReserveCorps (Protocol Page 9356 English).
Furthermore did the witness Bach-Zelewski declare that the German Police was not subject to orders by the German Army.
Inasfar as the witness Korn made statements in regard to the relationship between the German Police and the German Army, he qualified his testimony at the close of his cross-examination to the effect that his statements referred only to one operation and that generally he did not know how the relationship between Police and Army was during the execution of operations.
I shall interpolate. Now in view of these statements by Korn and Bach-Zelewski, the prosecution's claim in their final statement that Korn confirmed the subordination of police units to the Army - the transcript shows quite the contrary.
I shall continue on page 27.
The Croatian troops fundamentally were not subordinated to the German troops. From the War Diary entry of 15.8.1943, it follows that only at the start of the employment of the LXIX Reserve-Corps was the Generalkommando of the 2nd Croatian Corps subordinated to the LXIX Reserve-Corps. Already after a few days, namely on 18 August 1943, as can be gathered from the same document, it withdrew from this relationship of subordination.
Hitler ordered, as follows from the entry of 10 September 1943 of the same document, that Croatian troops should not be subordinated to German command authorities.
General Dehner never issued an order to the troops subordinated to him for the shooting of hostages. He also never authorized his troops to arrest or shoot hostages.
The summary order by Rendulic of 15 September 1943 was passed on to the subordinated units by the Deputy of General Dehner, who, while General Dehner was on leave, was the responsible leader of the Corps. During this time General Dehner did not command the Corps. Already for this reason he is not responsible for the passing on of the order of 15 September 1943.
Besides within the sphere of the LXIX Reserve Corps the order was not to be carried out by the Army and also was not carried out by the Army during the time, when General Dehner commanded the LXIX Reserve Corps. That the order was not to be carried out by the Army in Croatia follows from figure 5, of this order, which contains a special regulation for the execution of reprisal measures in Croatia. According to this regulation reprisal measures in Croatia were to be carried out by the Croatian Police, which, as I explained already, was not subordinated to the LXIX Reserve-Corps.
The rule in the order of 15 September 1943 that in urgent cases the Division Commander may order reprisal measures, was never made use of within the area of the LXIX Reserve-Corps. I refer in this connection to the statements of the former Commander of the 173rd ReserveDivision, General von Behr in his affidavit of 15 December 1947, who confirmed his statements during cross-examination on 21 January 1948 in the afternoon, and expressly testified that he never ordered any reprisal measures and that the troops under his Command never carried out any reprisal measures.
The same is true of the 187th Reserve-Division. The Prosecution has furnished no evidence that the Commander of the 187th Reserve-Division, who cannot be located, has ordered reprisal measures and that the troops under his command carried out any reprisal measures.
But even if the Division Commanders did order reprisal measures, then the Commanding General of the LXIX Reserve-Corps would have had no possibility to exercise any influence, since in regard to reprisal measures the Corps was entirely excluded. The witness Behr during cross-examination testified that the Division Commanders alone bore responsibility for the ordering and carrying out of reprisal measures. These statements were confirmed by the former director of the leadership corps with the LXIX Reserve-Corps, the former Lieutenant Colonel Engelschall in his affidavit of 22 December 1947. The correctness of these statements also follows from the summary order of the II Panzer Army of 15 September 1943.
I interpolate something. Therefore there can be no question that General Dehner tried to shift the respon sibility to his divisional commanders as the prosecution blamed in its final statement.