It was not that General Dehner shifted the responsibility or rejected it but one of his divisional commanders still to be located has taken the responsibility for himself. The prosecution can take everything away from this general of a defeated nation but it cannot take his honor.
Also in the Loehr-order of 22 December 1943 it was expressly ordered for Croatia that the decision on reprisal measures must be taken by the representatives of the Croatian Government. Therefore also on the basis of the Loehr-order the troops of the LXIX Reserve-Corps were not competent for the decision and carrying out of reprisal measures.
Now I come to the individual cases for which General Dehner is being held responsible.
Under point 1) of the indictment General Dehner is charged with the cases stated under figure 5 i), k) and m).
In case 5 i) the Prosecution up to the close of the evidence proceedings has not submitted any evidence.
From no document that was submitted by the Prosecution can the correctness of its claim be deduced that on 14 September 1943, 40 hostages were shot by troops of the 173rd Reserve Division in Croatia. No witness interrogated by the Prosecution has testified to that either.
Besides this allegation of the Prosecution can be considered disproved by the statements of General von Behr, the former Commander of the 173rd Reserve-Division. Von Behr led the 173rd Reserve-Division during the time when General Dehner was Commanding General of the LXIX ReserveCorps. These statements were maintained by von Behr during his cross-examination.
Even if the Prosecution had furnished proof to its claim, General Dehner could not be hold responsible, because Dehner was during this time on leave and did not command the LXIX Reserve-Corps, as follows from Document Dehner No. 1, Exhibit 9.
The Prosecution failed further to prove the claim under 5 k) of the indictment that on 28 September 1943 troops of the 173rd Reserve-Division shot 40 hostages. As evidence for the correctness of this claim the Prosecution submitted Document Exh. 332, the Daily Report of 28 September 1943.
I have explained already in the first part of my statements that these daily reports have no probative value, as they are incompatible with the recognized principles governing the taking of evidence. Add to this, with respect to this document, that, as may easily be seen from the photostat submitted by the Prosecution, two different teletyped letters had been placed one on top of the other and a photostatic copy made of them. The heading of the photostatic copy does not belong to the text of the report. This document, therefore, does not show the time when the incident mentioned in the report really happened. Thus, it can not be considered as a proved fact that this incident occurred during the time during which General Dehner was responsible for the command of the LXIX, Res. Corps. For this reason, let alone for the other reasons I have stated above, this document cannot be attributed any probative value, in particular, it cannot be used to achieve a conviction of General Dehner.
It must be added that three paragraphs of that teletype of 28 September 1943 completely tally with the daily report of the 2nd Armoured Army, dated 4 October 1943. The same incident is included at the same time in the teletype of the 2nd Armoured Army of 28 September 1943 and in the teletype of the 2nd Armoured Army of 4 October 1943. This fact too shows the unreliability of both reports.
Obviously the daily report of the 2nd Armoured Army of 4 October 1943 is based on the teletype of the LXIXth Res. Corps of the same date. In this teletype it is firstly stated that this measure had been carried out by the police. The word "police" was then struck out. But it would be wrong to infer from that that the measure was not carried out by the police, for it is quite possible that the word was struck out for the reason that it was not essential to state in the report by whom that measure had been carried out.
The evidence has shown that the 173rd Res. Division, which is alleged to have carried out that execution, has, in fact, not committed that act.
This is shown by the affidavits von Bohr and Kaudewitz.1) On the contrary, it may be assumed that that execution was carried out either by the German police or may-be by Croatian units, both of which were not under the command of General Dohner. The incident was reported by the 173rd Res. Division for the only reason that, as was shown by the evidence, the division reported all the incidents happening in the Corps area.
To point 5m) of the indictment the Prosecution has submitted the daily report of 10 October 1943, Exhibit 375, as well as document 079, Both pieces of evidence are, as may easily be seen from the documents and has been stated also by General Dehner in his deposition (Rec. p. 7931), one and the same document.
Even on the basis of these documents it cannot be considered a proven fact that in the neighbourhood of Vinkovci 20 people, suspected of being members of a band, have been executed. An argument against the assumption that the execution has been carried out is above all the fact that the execution has not been mentioned in the war diary of the LXIX th Res. Corps. In any case the conclusion may be drawn from this fact that, if the execution really did take place, it surely had not been ordered and carried out by the troops of the 187th Res. Div.. It would then be the case of an action carried out either by the German police or by Croatian authorities, and reported by the division to the Corps for information purposes only.
As a final result, the following statements maybe made with regard to the three points mentioned in count 1 of the indictment, in which General Dehner has been charged:
It has not proved that
a) these executions did take place at all,
b) in case that it should be regarded as proved, it is certain
1) Affidavit von Behr, Doc. Dehner No. 38, Exh. 34, vol. VII, page 104105 Engl. and German.
Affidavit Kaudewitz, Doc. Dehner No. 56, Exh. 52, vol. XI, p. 142 Engl. and German.
that these executions were ordered and carried out by units under the command of the LXIXth Res. Corps.
The Prosecution submitted, among the pieces of evidence submitted by it against General Dehner, some other teletypes, in which the execution of hostages was reported.
General Dehner, testifying as a witness, commented in detail on these documents. It results from General Dehner's deposition that not a single one of those executions had been ordered by him. Furthermore, the Prosecution did not succeed in proving that these executions by shooting, provided that they did take place, were ordered and carried out by the troops of the LXIXth Res. Corps.
Moreover, there is no proof for the assumption that General Dehner has been informed of the execution of those measures. Therefore, it cannot be ascertained whether or not General Dehner had the possibility to prevent these executions, provided that they did take place at all.
As far as the teletypes of 20 September 19431), 21 September 19432), and 23 December 19433) are concerned, it must be said that General Dehner cannot bear any responsibility from the criminal law point of view for the simple reason that he was on leave during that period and not in command of the LXIXth Res. Corps. The periods of General Dehner's leave, are shown by the excerpt from the pay book.
In particular, General Dehner gave his comments to those further teletypes which contain incidents not included in the indictment, when he was heard as a witness. I particularly refer to his statements(Engl. page 7935).
In a general way it might be said with regard to these further
1) document NOKW 1758, exh. 549, vol XXIV, p. 253 Engl.p. 185 German
2) document NOKW 658, exh. 375, vol. XVI, p. 6 Engl.
3) document NOKW 658, exh. 375, vol. XVI., page 36 Engl.
documents that the Prosecution has furnished no proof for the fact that these actions have been ordered and carried out by units under the command of General Dehner.
In this connection some more documents were submitted by the Prosecution in which the seizure of hostages was reported. This seizure of hostages too was not carried out by units under the command of the LXIXth Res. Corps, but by Croatian authorities. In this respect I particularly refer to the English transcript of the hearings, page 7963. This particularly applies to the seizure of the woman teacher from Kapella (reported in Doc. NOKW 143, exh.346, vol. XIV, page 77 Engl.), who was seized by a Croatian unit, part of which was the company that the husband of the teacher, a deserter, tried to induce to desert to the enemy. For the rest, it has been proved that this teacher from Kapella was set free by the Croatian unit when the reason for her seizure had ceased to exist.1) Therefore, General Dehner bears no responsibility for the seizure of hostages.
The seizure of the hostages as mentioned in the documents submitted would, incidentally, not constitute a war crime or a crime against humanity, as I am going to explain below. Thus, the seizure of hostages has for this reason not become a subject of the indictment against General Dehner.
Under count 2 of the indictment General Dehner is charged with looting and plunder of public and private property, as well as with the wanton destruction of towns and villages. The Prosecution contended that General Dehner too gave orders to the forces under his command to burn down entire towns and villages, to destroy them, to level them, and to shoot the inhabitants.
The Prosecution has not furnished the flimsiest proof for these contentions. It has not been proved that General Dehner ordered the plundering of public and private property or that acts of this kind have been committed in the area of the LXIXth Res. Crops by German troops.
1) Affidavit Engelschall, Document Dehner No. 35, Exh. 30, volume VI, page 96 English and German.
The documents I have submitted on behalf of General Dehner1)show that the German forces in Croatia did whatever was possible in order to conserve the economic strength of the country.
Moreover, the Prosecution has furnished no proofs for the assertion that General Dehner ordered the forces under his command at any time to burn down, to level, whole towns or villages, or to shoot their inhabitants. These are allegations without any foundation made by the Prosecution and for which there is not the slightest clue in the evidence submitted by it.
In particular, General Dehner has been charged with the cases mentioned under the counts of the indictment 2 e), g), h), and i). With regard to this, the evidence has shown the following results:
It does not result from the daily report of 24 September 1943 submitted by the Prosecution as an evidence (doc. NOKW 658, exh. No. 375, vol. XVI p. 7 Engl.) to count of the indictment 2 e) that these places had been set on fire at all, for the words "on fire" have been struck out.
Even if such an act should have been committed, General Dehner bears no responsibility for it for the following two reasons:
1. As is shown by the document Dehner No. 1, exhibit 9, vol. I, General Dehner was, at that time on leave and was not in command of the LXIXth Res. Corps.
2. If the places should have been destroyed it is not the troops of the LXIXth res. Corps that would be responsible for this measure but rather the police. The teletype shows that this was an action carried out by the SS Gruppenfuehrer Kammerhofer, who was not subordinated to General Dehner, but who acted quite independently. I shall interpolate. This was even confirmed by the Prosecution witness Korn. I shall continue. Here I am referring to the affidavits of von Behr, Engelschall, von Selchow
1) Affidavit Strachwitz, Document Dehner No. 28, Exh. 28, volume V, page 59 English and German Affidavit Schlegel, Document Dehner No. 39, exhibit 35, volume VII, p. 107 Englich and German Kaudewitz, Strachwitz, and to the entry into the war diary of 13 September 1943.
Likewise, the statements made by these people cannot be considered as refuted by the statements of the witnesses Bach-Zalewski and Korn. None of these two witnesses testified that General Dehner or an officer under his command ordered the destruction of those places, or, for that matter, that the destruction was carried out by the troops of the LXIXth Res. Corps. The witnesses Bach-Zalewski and Korn were not in a position to make any statements to that effect for the simple reason that at that time they were not yet in Croatia.
Nor is General Dehner responsible for the destruction of the villages Paklenica and Pokarica, as mentioned under subsection 2 g).
On the basis of the evidence submitted by the Prosecution it may be regarded as altogether highly doubtful whether or not these places were set on fire at all. In this respect I am referring to the testimony made by General Dehner on the witness stand. (Rec. pages 7974/7975 Eng.)
In case those places should, however, have been destroyed, the destruction was not carried out by the troops of the LXIXth Res. Corps, but rather by the Croatian police.
For the rest, the destruction was obviously no reprisal measure. Instead, the Croatian police destroyed those villages, because there was a military necessity to do so. Those two villages were notorious strongholds of the bands, from which raids against the railway line were carried out continually.
Under count, 2 h) of the indictment General Dehner is charged with the destruction of the village Yamena during the period of about the middle of November 1943. In this respect the Prosecution referred to the daily reports of 7 November 1943. But it results from the daily report of 23 December 1943 that this village was not yet destroyed by the end of December 1943. Thus, some well-founded doubts are arising about the correctness of the daily report of 7 November 1943.
THE PRESIDENT: Dr. Gawlik, before we take our noon recess, I think the record should show that there has been delivered to the Defense Counsel approximately forty copies of the German transcript for Tuesday.
The furnishing of this transcript and these copies to Defense Counsel is through very speedy work on the part of the Reproduction Department. It has been impossible to furnish this in manuscript form, as has been done in other cases, because, as the Tribunal is informed, the material which was submitted to the Reproduction Department was not in such a form or in such a condition as it could be taken care of, but the situation has been met by the furnishing to the Defense Counsel of the transcript for the day in question.
The Tribunal will be in recess until 1:30 this afternoon.
(A recess was taken until 1330 hours, 7 February 1948.)
Court No. V, Case No. VII.
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 7 February 1948.)
THE MARSHAL: Tribunal V is again in session.
DR. LUCHT: ( Attorney representing Dr. Latarnser, for the Defendant List) If it please the Tribunal, in the English version of the final plea for Field Marshal List, which has been obtained in the meantime, there are a number of translation errors.
This particularly refers to the documents quoted in the footnotes. We now have made a list of the corrections of these errors, and I would like to take the liberty to offer this list to the Tribunal as a supplement to the Final Plea.
THE PRESIDENT: It will be received; pardon me.
MR. FULKERSON: If the Tribunal please, what he says in perfectly true because what has happened here is that we wrote the final statement and of course incorporated extracts from the English translation of these various documents, and from the English translation of the testimony, and we didn't have time, unfortunately, to go back through and comb half of these various originals you see and incorporate them, so what appears in the English, in the German transcript is a re-translation of those various excerpts from the English into the German; but, since every one is so familiar with the record any way, we hope no confusion will arise through that.
THE PRESIDENT: Does this refer to the Prosecution documents?
MR. FULKERSON: To the Prosecution's closing statement, yes, Sir.
THE PRESIDENT: The Tribunal will receive the statement to which you refer.
DR. GAWLIK: I shall continue reading on page 39.
"Furthermore, evidence has not shown that the destruction was ordered or carried out by the troops of the LXIXth Res. Corps. Thus, it is quite possible that the destruction was carried out by the German or Croatian police, which was not commanded by General Dehner.
"For the rest, it was not a question of a reprisal measure being Court No. V, Case No. VII.
carried out, but a military necessary measure. Yamena was an important place for the partisan activities, accessible with difficulty, where there were munition and arm stores of the bands. That is why the destruction was imperative for military reasons.
"To the charge raised against General Dehner under subsection 2 i) Kaudewitz, a staff officer of the 173rd Res. Division, had commented in every detail in his affidavit1). Following the statements made by Kaudewitz it must be assumed that no buring down has taken place at all in all probability. Near Grgurevsci (?) some sharp encounters took place, so that the destruction of this place - provided that the place was destroyed at all - was caused by these combative engagements.
"The Prosecution has presented a number of other teletype messages, which deal with the destruction of villages, as evidence against General Dehner.
"The taking of evidence has shown the following, in this respect:
"The destruction of the village Vitojevci and of other villages reported in the daily reports of 9 October 19432) and 8 December 19433) were ordered and carried out by the police. Operation Kammarhofer, which was neither ordered nor carried out by the 69th Reserve Corps, was responsible for the destruction of the village Vitojevci.
"The testimony of the witnesses Bach-Zelewski and Korn, in particular, does not show that the 69th Res. Corps was connected in any way with Operation Kammerhofer. The testimony of both of these witnesses refers exclusively to Operation "Armin". However, this Operation "Armin" began on 14 October 1943 and was already over on 16 October 1943." I shall omit the next sentence and continue.
"And the police units which, according to the daily report of 8 December 1943, destroyed the villages mentioned in subsection d), were not subordinate to the 69th Res. Corps in the execution of this operation.
1. Document Dehner No. 56, exhibit 52, vol XI, page 142 Engl. and German 2. Document NOKW 658, exhibit 375, vol.
XVI, page 12 English 3. Document NOKW 658, exhibit 375, vol.
XVI, page 34 English Court No. V, Case No, VII.
This is shown by the wording of the daily report, because this act of destruction was reported under the heading of "2nd Ustascha Brigade". The 2nd Ustascha Brigade was at no time subordinate to the 69th Res. Corps.
"The destruction of the Village Susnjevci, mentioned in the daily report of 26 September 19431), happened while General Dehner was on leave. Therefore General Dehner could not be held responsible for this act, for this reason alone.
"The other acts of destruction mentioned in the documents presented were not reprisals. These acts were rather the result of combat operations, as can be seen from the wording of the daily reports. This is especially true for the villages of Swilos and Grabowe2), as well as for Novo Tropolje3).
"The Prosecution has further accused General Dehner, under count 3), of having issued or executed orders which were designed to prevent the treatment of members of the regular Yugoslavian army as prisoners of war.
"This accusation, too, is in no way proven.
"Members of bands who were captured in Croatia by German troops were always treated as prisoners of war. This can be seen from the affidavits of Schlegel4), Engelschall5), Schilling6), and Seuser7).
"This pertains also to these band members who were German uniforms.8) "The OKW order of 18 August 1943, which ordered the shooting of band members wearing a German uniform or the uniform of an allied power, was not carried out in the territory of the 69th Res.
Corps. The 69th Res. Corps. did not receive this order and therefore could also not transmit it.
1) Document NOW 658, exh. 375) vol. XVI, pg 9 English
2) Document NOW 658, exh. 375) vol. XVI, pg. 31 English
3) Document NOW 075, exh. 358, vol. XVI, pg. 112 English
4) Document Dehner No. 39, exh. 35, doc. Bk. VII, page 109
5) Document Dehner No. 35, exh. 30, doc. bk. VI, page 97
6) Document Dehner No. 57, exh. 53, doc. bk. IX, pg 145
7) Document Dehner, No. 17, exh. 2, doc. bk. II, page 23
8) Document Dehner No. 33, exh. 32, doc. bk. VI, page 88 and record 8001.
Court No. V, Case No. VII.
"The Prosecution has also not provided proof that use was made of the authorization not to take prisoners contained in par. II, subsection 2 of the Army Order of 15 September 1943, in the territory of the 69th Reserve Corps.
"General Dehner neither issued nor executed this order.1) The stipulations of the order from 15 September 1943, like the other stipulations, were also not carried out in the territory of the 69th Res. Corps.
"Under count 4 of the indictment General Dehner is accused of 1. having arbitrarily arrested inhabitants of Croatia and thrown them into concentration camps, 2. having taken large parts of the civilian population of Croatia and sent them to work in the Reich and in the occupied territories.
The Prosecution has still to produce for the proof for these statements."
On Pages 43 and 44 I have further substantiated this statement. I am not going to read these two pages, however. The Prosecution has in their final statement not maintained this charge against General Dehner.
I shall continue now reading on page 45.
"I now assume, 1. that the evidence presented is fully valid, 2. that Croatia was not an independent state and was also treated as enemy territory by the German troops during the time GeneraL Dehner was there, and 3. that General Dehner would have ordered or permitted any of the acts of which he is accused under counts 1) and 2) of the indictment.
I emphasize that these are three suppositions.
The following expositions are therefore built upon three presumptions, none of which, as I have already shown, exists in fact.
In case Croatia were not to be considered as an independent state, the
1) see above page .....
Court No. V, Case No. VII.
troops of the 69th Res. Corps would have had the rights of an occupation force.
To be sure, the Prosecution has said in its brief of law that the population of Croatia did not have the duties of the people of an occupied territory, because Germany's war against Yugoslavia "was an aggressive war in violation of international law". In the opinion of the Prosecution the German troops in Croatia would not have had, due to the illegal nature of the war, the rights due an occupation force according to the Hague Convention.
I have refuted these legal theories of the Prosecution through recognized teachers of international law, especially through the works of Hyde1), Fenwick3), Wheaton4), Garner5) and Hackworth6). None of these men ever held the legal views that the Prosecution has presented. The practice of nations and the practice of courts in the field of international law also does not reveal such a legal view. I have rather, as I have pointed out in my reply to the memorandum of the Prosecution, only found the opinion that, once a state of war exists, regardless of whether this state of war came into being through a violation of international laws, the rules of martial law, especially the regulations of the Hague Rules of Land Warfare, are to be applied.
This has recently been expressly stated by Lauterpacht in his book which appeared in 1944. This well known authority on international law has expressly stated that no matter what the cause of a war may be, the recognized rules of martial law are to be
1) Carles Dheney Hyde, International Law, 1945.
2) Oppenheim-Lauterpacht, International Law, 1944.
3) Charles G. Fenwick, International Law, 1924.
4) Wheaton, Elements of International law, 1916.
5) Garner, International Law and the World War, 1920.
6) Green H. Hackworth, Digest of International Law, 1945.
Court No. V, Case No.VII.
applied.1) According to Lauterpacht the rules governing martial law are also valid, without distinction, for wars which were begun in violation of the Kellog pact.
2) Where would the viewpoint held by the Prosecution lead to?
In a war, each contestant claims that the other contestant is waging an illegal war according to international law. Therefore each contestant would claim that it was not bound by the existing rules of martial law. This would be the end of the Hague Convention regulations for land warfare. A lawless situation would ensue. The successes of the Hague Peace Conference of 1899 and 1907 would be nullified. It can be considered as progress, albeit slight progress, if standards for the conduct of war are at least set up in part, standards that are intended to make the conduct of war human and to alleviate the sufferings of war.
It must be the task of our time, if we do not succeed in preventing wars, to regulate the altercations between nations in other ways, to bind the
1) Par. 61. Whatever may be the cause of a war that has broken out, and whether or not the cause be a so-called just cause, the same rules of International Law are valid as to what must not be done, may be done, and must be done by the belligerents themselves in making war against each other, and as between the belligerents and neutral States. This is so, even if the declaration of war is ipso facto a violation of International Law, as when a belligerent declares war upon a neutral State for refusing passage to its troops, or when a State goes to war in patent violation of its obligations under the Convenant of the League or of the General Treaty for the Renunciation of War. To say that, because such a declaration of War is ipso facto a violation of International Law, it is "inoperative in law and without any judicial significance", is erroneous. The rules of International Law apply to war from whatever cause it originates."
(Oppenheim-Lauterpacht, International Law, 1944, pg. 174/75.)
2) "These exceptions are in themselves sufficient to show that, even for its signatories, the Paris Pact has not abolished the institution of war. It could not, of course, have that effect in regard to the nonsignatories. Moreover, war is possible, and must be reckoned with as an ever-present possibility, in violation of the provisions of the Pact. A war thus undertaken would be illegal, but it would still be war regulated by the accepted rules of warfare."
(Oppenheim-Lauterpacht, International Law, 1944, page 150.)
Court No. V, Case No. VII.
warring nations more and more to strict rules and to contribute to a humanization of war.
I continue on page 49 at the top.
It is depressing for us Germans that we must discover today, in the same manner as we could in connection with the first World War, that no rights of any kind as laid down in the laws of war are granted to us. When we are an occupation power, then it is said that we have not the rights which apply to an occupation power, according to the Hague Convention. When we are, as in present times, an occupied country then it is stated that we Germans cannot resort to rights which apply to an occupied country, according to the Hague Convention.
Yet, I could understand it, if such opinions were upheld by politicians. I could not understand it, however, if lawyers adopted such opinions. There cannot be two kinds of International Law, an International Law for victors and an International Law for vanquished, an International Law for Germans and an International Law for non-Germans. On such a basis no new system of law, no new world, especially no world of permanent peace and harmony can be established. I have confidence in the High Tribunal that it will not adopt such an opinion. I have confidence in the High Tribunal that it will not pass an authoritarian decision of the victor on the vanquished, but, on the contrary, a verdict based on law, judging objectively from the facts and the legal situation.
Above all, I have confidence that the High Tribunal will not adopt the legal opinion of Professor Hobsa1), who is unknown in the field of the science of International Law, which was expressed in his book published after the second World War in 1946 and which, as can be seen from its contents, obviously has a tendency directed against Germany.
The decision on the question whether the forces of the LXIXth Reserve
1) Hobsa: Summary sketch on International Laws of War, Prague 1946.
Court No. V, Case No. VII.
Corps which was commanded by General Dehner in Croatia have the rights and obligations of an occupation force or not, and whether or not the population of this territory had the rights and obligations of an occupied country, does not depend, therefore, on the question whether or not the war waged by Germany against Yugoslavia was an aggressive war within the meaning of the Kelogg Pact, but exclusively on the position Yugoslavia held according to International Law within the community of nations. Therefore, it is irrelevant and does not require examination whether or not the war waged by Germany against Yugoslavia had been begun under violation of International Law.
Furthermore, the Prosecution alleged that the German forces in Yugoslavia had not the rights which apply to an occupation power according to laws of war in force, for the very reason that the occupation has not been effective. In this connection the Prosecution particularly alleged that during the whole period of the German occupation of Yugoslavia and German forces were too low in number, too old, too effeminate, too unfit and not mobile enough in order to maintain peace and order in the territory. The German forces were repulsed by the bands which had formed organized units, and, in particular, the bands had conquered large areas of Croatia since the beginning of 1943.
I leave the question undecided to what extent this allegation of the Prosecution is justified for the whole of the South-Eastern territory, which is the subject of this trial. At any rate, it does not apply to the sphere of the LXIXth Reserve Corps in Croatia for the period during which General Dehner commanded this Corps.
The Prosecution did not produce evidence for this allegation either, as far as the sphere of the LXIXth Reserve Corps is concerned. None of the witnesses testified that in the sphere of the LXIXth Reserve Corps large parts of Croatia had been occupied by bands and that the forces of the LXIXth Reserve Corps had not been able to drive the bands from a village Court No. V, Case No. VII.
which they had temporarily occupied for a short time. This is not shown either by any of the documents submitted by the Prosecution in evidence. However, according to the general rules of the code of criminal procedure, it is the task of the Prosecution to prove its allegations. The documents submitted by the Defense Counsel as evidence even show that these statements of the Prosecution are incorrect. In this connection I particularly refer to the affidavit by Engelschall, and to the testimony of General Dehner on the stand. The affidavit by Engelschall shows, above all, that the territory within the sphere of the LXIXth Reserve Corps was a pacified area. During the whole period in which General Dehner commanded the LXIXth Reserve Corps in Croatia, only two villages fell for a short time into the hands of the bands, which were driven from them immediately.
Furthermore I leave undecided to what extent the German forces committed in the whole South-Eastern territory were adequate to the tasks they received. At all events, it does not apply to the forces of the LXIXth Reserve Corps that they were too low in number, too old, too effeminate, too unfit and not mobile enough to maintain peace and order in the territory.
Within the sphere of the LXIXth Reserve Corps the occupation was effective during the period General Dehner commanded the Corps, whereby it is assumed that it was an enemy country, as I wanted to stress.
In this connection attention must be paid to the fact that it does not matter whether or not the whole of Yugoslavia had been occupied, but only whether or not the territory in which the acts General Dehner is charged with were committed, was effectively occupied.
According to Article II of the Hague Convention the population was not entitled to take arms and to offer resistance to the German troops. For, Article II expressly mentions the approach of the enemy. Therefore, a leve en masse is no longer permissible, when the country is occupied.
Court No. V, Case No. VII.
As regards this, I particularly refer to the statements by Heyde1) and by Oppenheim-Lauterpacht. What General Dehner is charged with in Count 1) are measures taken against hostages, and what he is charged with in Count 2) are other reprisals, if it is considered to be proved that those were not combat actions.
For those actions which the Prosecution alleges not to have been part of the combat action, the Prosecution admits that they were not carried through wantonly, but were caused by the attitude of the bands.
From the documents submitted by the Prosecution it can be seen that any measures which might come under Counts 1) and 2), were always caused by attacks of the bands on railroads, villages, members of the German Armed Forces, police and Croatian units.
1) Hyde, International Law, 1945, Volume III, Page 1793.
2) Oppenheim-Lauterpacht, International Law, 1944, Page 205:
"Art. 2 of the Hague Regulation does not ever cover this case in which, therefore, the old customary rule of international law is valid, that those taking part in such a leve en masse are liable to be shot or captured."
Court No. V, Case No. VII.
For reprisals and hostages there are no standards in International Law. I already set forth in my Opening Statement that International Law was completely broken down after World War I. For this statement I did not refer to the German teachers of law, but to a generally acknowledged teacher of law of the United States, namely Garner, I have not done this for the reason that we Germans had not done this to be ashamed of our jurisdiction, but because I supposed that the members of the High Tribunal were more familiar with opinions advanced by the teachers of law of the USA than with the theorie of the German teachers of law. The statement that International Law is completely broken down applies to a still larger extent to the time of the second World War and to the present time. I think that there cannot be any doubt about this and that the members of this High Tribunal will agree with me, as was already done by the presiding judge of Tribunal II in Case 4, who added to my statement that International Law was disintegrated after the first World War, that it is also disintegrated to a large extent after the second World War. This is seen in Case 4, pages 5760 of the German records).
If this statement can be made with regard to International Law in general, it applies all the more to the conceptions of reprisals and hostages in International Laws. There is no standard laid down in International Law up to now for the carrying through of reprisals and for the taking and the treatment of hostages. Also with regard to this I refer to a generally acknowledged teacher of law of the USA, Professor Carl Fenwick.1) In this connection I also refer to the book "International Law" by Oppenheim, published in 1944. Oppenheim expressly states that rules of any kind regarding the preconditions for and the carrying through of reprisals do not exist in International Law, and he considers it
1) Fenwick: "A survival in the laws of war of the complete lawlessness of earliest times is to be seen in the practice of reprisals and retaliation as a sanction to prevent the continuation or recurrence of violations of the law....." Page 489 Court No. V, Case No. VII.