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.
an imperative necessity that such rules are established.1) The politicians did not succeed in establishing any standard rules for reprisals and for the taking and the treatment of hostages.
The statesmen of the nations belonging to the community of nations could not agree upon this. At the Brussels Conference in 1874 the attempt was indeed made to come to an agreement upon reprisals. The proposal made by Russia regarding reprisals was however not approved.
For that reason the Hague Conferences of 1899 and 1907 did not establish any rules concerning reprisals either.2) Why have no rules for the carrying through of reprisals, especially for the taking of hostages, in International Law been established up to now?
There can only be one reason for this, namely that the opinions of the individual nations were entirely divergent so that it was not possible to reconcile them to one uniform opinion.
The indicted Generals do not bear the responsibility and the guilt, if there can be a question of guilt, for the reprisals and measures taken against hostages which are on trial here - particularly not General Dehner whose cause I am pleading. It is the responsibility and the guilt of the politicians, of the leading statesmen of the past hundred years, who neglected to establish norms in International Law regarding reprisals and hostages, according to which the soldiers could have acted.
Are the Generals now to be the scapegoats for the failure of the statesmen? Is a General Dehner to be made liable now for the statesmen's neglect of their duty to establish rules for reprisals and treatment
1) Oppenheim's International Law, Page 449: "In face of the arbitrariness with which, according to the present state of International Law, resort can be had to reprisals, it cannot be denied that an agreement upon some precise rules regarding them is an imperative necessity."
2) Oppenheim's International Law, Page 449: "The Hague Regulations did not mention reprisals at all, because the Brussels Conference of 1874, which accepted the unratified Brussels Declaration, had struck out several sections of the Russian draft code regarding reprisals."
Court No. V, Case No. VII.
of hostages? Could such a decision be just? I think such a decision would be contradictory to the most basic principles of justice.
It is a precondition for every punishment that first of all a norm, a law is established, for only on such a basis could a sentence be passed. Since no law of this kind exists or existed, a violation of International Law, especially of the laws of war, cannot be assumed to exist.
Principles for the carrying through of reprisals and the taking and treatment of hostages were only developed by teachers of the law till now. However, the opinions of the teachers of the law are not sources of International Law, as I set forth in detail in my reply to the memorandum of the Prosecution. As regards this I particularly refer to my statements on page 38 of my reply. Although the opinions of the teachers of the law are not sources of International Law, and therefore a sentence cannot be founded on their opinions, I should like to explain in short the prevailing scientific opinions, in order to prove that even on the basis of the scientific opinions of the generally acknowledged teachers of International Law, who enjoy a world-wide renown and cannot be compared with an unknown Professor Hobsa, a punishment would not be justified. Of course it is impossible for me to go into all details in this plea. One thing can be stated, however, by an examination of the literature on International Law: The teachers of International Law differ in the conceptions of reprisals and hostages. Already the conceptions are indefinite, more indefinite than the conceptions are the prerequisites for the carrying through of reprisals and with this for the taking and treatment of hostages. No agreement can be found as to the prerequisites which make these measures permissible. That is a further reason for the fact that a punishment could not be founded on an expert opinion of any kind. For a correct interpretation of my following statements I think it necessary to define first of all the conceptions I should like to take as a basis, in which connection I refer, for a better interpretation, to the sketch on the following page of my plea.
Court No. V, Case No. VII.
In preparing this outline the prevailing theory of the science of international law has been taken as a basis.
In its Brief on the Law the Prosecution has declared that reprisals and hostages have at all times been separate terms. It explained that reprisals and hostages had different historical roots and that legal literature and commentaries differed on each of these two terms. Furthermore, the Prosecution raised the charge that the Defense has mixed and blurred these two terms together in an unadmissible way. In this connection the Prosecution also asserted that even the German troops in the South-east area had not made a distinction between these two terms.
It appears from the outline that this view of the Prosecution is not correct.
It is significant that the Prosecution has not cited any professors of international law at all in support of its view, but has merely referred to the Prosecution speech.
Why has the Prosecution not mentioned legal literature and commentaries in support of its statements? To this there is only one answer: because the Prosecution is not able to quote any legal literature and any commentaries in support of the opinion which it holds.
I shall now comment on this question again by taking as a basis the opinions of the best-known professors of international law.
Court No. V, Case No. VII.
On the next two pages, 58 and 59, I have dealt with the legal concepts pertaining to reprisals and hostages, and I have discussed them based upon the available documents on them. I shall read one sentence from the middle of page 59: Treaty hostages and reprisals are two separate terms. On the other hand, prophylactic and security hostages are subordinate kinds of reprisals. In the following statement, which I am not going to read, this opinion is further substantiated on page 59 and the second half on page 60. I shall now read from page 60, the last but one paragraph.
As a result it can thereby be determined that prophylactic and security hostages are to be regarded as reprisals, the killing of whom is not declared to be inadmissible. In the statements which follow I have rendered proof for the fact that in the case of reprisal measures, which become apparent from the documents, are to be regarded to have been proved, all requisites of a reprisal measure admissible under international law were given. This is being done on pages 60, 61 and 62 also.
I shall continue reading on page 62, towards the middle of the page.
In case full evidential value should be attributed to the documentary material which has been submitted, then the latter would also show that the conditions for the admissibility of reprisals are present.
Proportionality is not a necessary condition for carrying out reprisal measures. This appears in particular from the statements of the professors of international law STRUPP1) and HATSCHEK2). From this it follows that the proportionality of the hostages is irrelevant. Therefore, no viola
1) STRUPP, Woerterbuch des Voelkerrechts und der Diplomatie, p. 350.
2) HATSCHEK, Voelkerrecht als System rechtlich bedeutsamer Staatsakte, 1923, page 450.
Court No. V, Case No. VII.
tions of the laws of war can be deduced from the fact of the non-proportionality of the reprisal measures.
Moreover, a decision on this question is irrelevant. To be sure, in its opinion on the Law the Prosecution has maintained that thousands of hostages were apprehended for security reasons. (page 31). This is in no case true with respect to the area of the LXIX Reserve Corps. To this extent this allegation is untrue and a product of sheer imagination. The evidence submitted shows the following facts with respect to the area of the LXIX Reserve Corps:
The proportion of the number of the persons killed by the bands to the number of hostages presumably killed amounted to 1 : 0.3. In other words: In the area of the LXIX Reserve Corps the proportion of 1 : 1 was not reached even once.
In this calculation it is assumed that all the documents submitted by the Prosecution have full probative value.
Pages 64 and 65 deal with Count III of the Indictment. In these pages I have shown that General Dehner did not participate in either the passing on or the carrying out of the Commissar Order, nor in the passing on or carrying out of the Commando Orders nor, in the carrying out of the shooting of officers of the capitulated Italian Army.
I shall continue reading on Page 66.
Even if one could assume that troops of the LXIX Reserve Corps had committed any acts, as claimed by the Prosecution, any punishment of General Dehner would be precluded by the fact that he acted on orders from his superior authorities.
In the memorandum, submitted by me, I have already expressed my opinion in detail to the question as to what extent the plea to an order, given by higher authorities, precludes the punishment. In this respect I refer to the statements on pages 20 to 41 of my memorandum and here I shall only summarize in brief the legal views expressed therein.
In my legal memorandum I have pointed in particular to the fundamental decision which is generally recognized in the science of international law and which was not given consideration in the memorandum submitted by the Prosecution, namely:
1. The plea of acting on superior orders in general and 2. The plea of acting on superior orders given for the execution of acts of reprisal which, as I have already stated, also includes measures taken against hostages.
On Pages 66 to 73 I have dealt with the plea of superior orders, in a way, and I have reached the result that the opinion held by the Prosecution, namely, that it was a generally recognized principle of law that the plea of superior orders was not admissible, is not correct.
On Page 73 I have continued to deal with the plea of an order for the carrying out of reprisal measures. In this connection I have stated that it is a generally recognized fact that the plea of an order for the carrying out of reprisals is admissible. This is also recognized by those professors of International Law who do not generally recognize the plea of superior orders. They particularly make an exception for the plea of an order for the carrying out of reprisals.
I continue on Page 73, second paragraph:
Should however reference as excuse to the higher authority not be regarded in general as permissible, then, in the case in question, as I have demonstrated in Part II on pages 40 and 41 of my Legal memorandum, it is to be regarded as admissible in the case of General Dehner because it is a question of orders for carrying out reprisals. On this there exists no doubt in the Community bound by international law that a subordinate can refer as excuse to an order for carrying out reprisals and cannot be punished for carrying out an order of the kind. Even those writers and teachers of international law, like for example, Lauterpacht, who generally reject reference as excuse to a superior order, admit it. This incontestable opinion in the science of international law results from the following considerations:
Reprisals are measures which in themselves violate international law especially the martial law. They are however, permissible from an international point of view if they are necessary to compel the enemy to observe the laws of war. Whether this pre-requisite exists only he can judge who is competent to decide about the carrying out of reprisals, in other words, he who issues the order for carrying out the reprisal, As a rule, only he has knowledge of the illegal behavior of the enemy. It is impossible for the subordinate who receives an order to carry out reprisals to decide the question of the admissibility of reprisals. Therefore he cannot judge either whether the order for carrying out reprisals is legal or illegal.
General Dehner is not accused by the Prosecution of having himself issued orders for carrying out of reprisals, rather the Prosecution accuses him merely of having carried out the orders issued by his superiors dated 13 September 1943 and 24 December 1943.
He could not therefore for the reasons mentioned be punished on account of carrying out these orders. Furthermore, the Prosecution submitted as an incriminatory material against General Dehner the report of the Res. Inf. Reg. 45 of 23 October 1943) and the combat report of the Res.
Inf. Reg. 45 referring to encroachments by the Cossacks.
The incidents shown by these documents are not subject of the indictment. For this reason alone they may not constitute the basis of a conviction.
For the rest, no proofs are to be found in these documents for the assumption that General Dehner was a part in the commission of crimes against humanity or war crimes in Croatia.
The documents submitted contain reports about excesses committed by the Cossacks.
In considering the probative value of these documents, it must be taken into consideration that reports about excesses committed by the Cossacks were often fictitious and exaggerated. In this connection I am referring to the entry into the War Diary dated 31 October 1943.
Moreover, the documents submitted by the Prosecution show that General Dehner, whenever he received information about any excesses committed by the Cossacks, punished these excesses with the harshest means at his disposal. It is true that with regard to this point the Prosecution stated that as far as the incidents occurring between the entries 5 and 7 are concerned no mention was made of any measures taken against those excesses. However, this interpretation of the document is wrong, as General Dehner, testifying on the witness stand, explained in all details.
That submission of the Prosecution is due to an incorrectly made copy of the photostatic copy for the document book. The brackets found on the photostatic copy are evidence for the fact that steps have been taken against the excesses in each case. These important brackets were omitted in the copies, creating thereby a false impression.
The measures taken by General Dehner against the Cossacks are also shown by the entry into the war diary dated 31 October 1943. This is, incidentally, also proved by the affidavit of Engelschall and Strachwitz which have been submitted.
Likewise, the Prosecution witness von Bach-Zalewski testified also the division commanders took steps against the excesses committed by the Cossacks and that the guilty members of the Cossack division were court-martialled.
For the rest, the testimony of the witness Bach-Zalewski shows that the excesses of the Cossacks were directed against Germans living in Croatia.
I insert this: The Prosecution in its Closing Statement has made following remark, and I quote:
"In actual fact, according to the records with reference to the First Cossack Division and judging by these reports, General Pannwitz in those days must have led a rather full life. He seems to have spent much of his time with signing death sentences of members of his division who were sentenced because of plundering, robbing, murdering, looting, raping etc. by courts martial when he is faced with the question when he did find time, in actual fact, to deal with tactical matters...."
First of all, we have quite an exaggeration here on the part of the Prosecution because, from the documentary evidence submitted by the Prosecution itself, it becomes apparent that these statements of the Prosecution are incorrect. Furthermore, I put the following questions "Is this to be reproach against excesses of the First Cossack Division, that the most stringent punishments were taken, or is it rather a confirmation of my statement that everything was done to prevent the Cossacks from indulging in excesses?"
The Final Statement of the Prosecution clearly shows the tactics pursued by the Prosecution. First of all, with reference to incorrect copies in the document books, the Prosecution maintained that nothing was done against excesses committed by the First Cossack Division; and after it had been corrected the Prosecution now raises the charge that the Cossacks, designated by the Prosecution as the guilty party, were in actual fact punished, and apparently the Prosecution wants to make General Dehner responsible for this also.
Is this supposed to be a war crime or a crime against humanity? On what a weak foundation is this building of the Prosecution based:
I shall not continue reading on page 78:
Therefore, the following conclusions may be established:
General Dehner cannot be convicted for the following reasons:
1. The evidence submitted has no strength of evidence, so that for this reason alone a conviction would not be justified.
2. The acts reported in the documents have neither been ordered by General Dehner, nor have they been carried, out by troops of the LXIXth Res. Corps, instead, in case they have been committed at all, the German and Croatian police were responsible for them, which were not subordinated to the LXIXth Res. Corps.
3. There are no rules of international law on which a conviction could be based, in particular this applies to the measures concerning hostages and other reprisals.
4. A conviction might be rightly opposed by the plea of superior orders.
Thus, the trial has shown that General Dehner has committed no crimes, in particular, that he has not become guilty of the war crimes and crimes against humanity he has been charged with.
Actions of this kind would also be incompatible with General Dehner's character.
General Dehner's life was devoted to the performance of his duties, his duties towards his nation. Even today, when his fatherland has lost two world wars, General Dehner need not be ashamed of having done his duty.
Apart from that, General Dehner's life was devoted to the performance of his duties towards mankind.