At the beginning of the above mentioned trial against those men it was ascertained that the two defendants had been severely beaten up by the population.
"The appearance of the German Summary Court and the execution squad at Efkarpia on 23 October was welcomed by the inhabitants and the Greek police. Before pronouncing the sentence the presiding judge of the Summary Court explained the reasons for the annihilation of the villages Ano and Kato Kerzilion, which had taken place on 17 October. Subsequent to reading the reasons for the finding, the inhabitants of the village expressed their approval of the sentence by shouting and gesticulating."
On page 2, paragraph "d", it says:
"In connection with the proceedings against a bandit who had been sentenced to death by the Summary Court of the Pioneer Batl. 220 for murder with robbery and illicit wearing of weapons, a great number of interrogations of Greek inhabitants from the region to the west of the mouth of the Strymon River was carried out, in the course of which the following clues concerning the bands plague came to the fore."
I would now like to read paragraph 2:
"As arguments for the formation of the bands both Nationalistic and Communistic slogans were employed by the bandit leaders."
I shall omit about six lines and then continue:
"There is, however, the impression to be gained from the interrogations that those slogans had only been chosen in order to recruit for the band both Communist and Nationalistic elements, while in reality they arc nothing but a gang of robbers."
So here, you see the statement that they are just a band of robbers.
Paragraphs 3 and 4 I shall not read. On that next page I shall only read from approximately the 10th line from the top:
"They are instructed to hide their arms in case of danger and to go afterwards as harmless forestry workers to the ravine."
The next part deals with the food situation and I would like to read the last sentence of the third paragraph:
"Several bandits wore permanently charged with the transport of food. For that purpose they used also such inhabitants as refused to have anything to do with the bands, forcing them to hand over donkeys for the transportation."
Then paragraph 6:
"The names of the band members could be ascertained partly by the interrogations of the murderer and robbers sentenced to death, partly from the interrogations of bandits and inhabitants.
"On the occasion of the annihilation of the village Kato Kerzilion on 17 October 1941, 4 bandits from Kato Kerzilion and two from Kazo Kerzilion who had been proved to be active band members on account of the above mentioned interrogations were shot."
Then under "3" we have:
"Search for weapons: At Kato Stavros explosive ammunition was found in the house of an inhabitant. On 22 October he was condemned to death after sentence by Summary Court martial by the Pioneer Battalion 220. On 26 October 1941 a Greek was shot at Kianzitza for illicit possession of arms, after having been sentenced by Summary Court martial."
Paragraph 4 I shall not read, nor 5 and 6.
Now, I shall deal in Document Book II on page 28, with Document 44 which will be offered as Exhibit 37. This is a document which has already been submitted in excerpts by the prosecution as Exhibit 215, and now I shall read a further extract which has so far not been read.
PRESIDING JUDGE CARTER: What was the number of the exhibit again, please?
DR. MENZEL: Exhibit No. 37.
This passage deals with the treatment of prisoners:
"On 7 February 1942 28 former Greek officers from Mytileni were delivered to Saloniki because they were suspected of smuggling people to Turkey. They are interned temporarily in a private home and guarded. An Italian escort guard unit delivered 467 Greek prisoners of war from Crete who live in this command area, to Transit Camp 183. They all had discharge certificates and were therefore released. The number of incoming English P.W.'s is slight. 17 Britons were recently brought in, 253 were sent to Germany."
That is Exhibit No. 37 and I shall now continue still in Document Book II with Document 51 on pages 41 and 42. This will become Kuntze Exhibit No. 38.
PRESIDING JUDGE CARTER: I think we will take our noon recess before you read this exhibit.
THE MARSHAL: The Tribunal will be in recess until 1330 hours.
(The Tribunal adjourned until 1330 hours 8 January 1948)
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours 8 January 1948)
THE MARSHAL: The Tribunal is again in session.
DR. LATERNSER (Counsel for defendants List and von Weichs): Your Honors, I should like to announce a witness, the witness, Julius Ruehm. His examination will take about half an hour according to my estimate. Only today did I hear of this witness. He is being called at this moment and I should like to examine him. If you please, I am prepared to call him when the documents of my colleague, Dr. Menzel, have been presented.
If the Prosecution insists on the 24-hour time limit, I shall only be able to hear him tomorrow. I myself have not talked to the witness; only one of my assistants has.
MR. RAPP: Your Honors, yesterday I believe Mr. Fulkerson called to the Tribunal's attention the serious situation we may be faced with in regard to the continuity of this trial on the part of defense counsel. I believe yesterday, if Dr. Laternser of any of his colleagues wanted to produce a witness today at the end of Dr. Menzel's presentation, such witness could have been announced then. Defense-counsel must have certainly known that such witness was in the offing and, having played safe, they could have said: "We will hear him tomorrow providing he is here." They then could have withdrawn if he had not arrived.
We feel that we are in no position to waive the 24-hour requirement. We were held very strictly during the direct case to it. We are not prepared to cross examine him. I don't know who the man is. I cannot be expected to cross examine a witness without any preparation whatsoever.
DR. LATERNSER: Your Honors, this witness, whose name I have just announced -- his name is Julius Ruehm -- it is only today that I heard about this witness. The witness whom I announced yesterday cannot be because he is on his trip here now.
I have endeavored in this case to act as fast as possible so that the procedure would not be disturbed.
MR. RAPP: Your Honors, I would like to call one other thing to the Tribunal's attention. I don't on the part of the prosecution like to have the onus for having delayed this be put on the prosecution by not agreeing to waive the 24-hour period. The onus rests squarely, as far as we see it, with defense.
DR. LATERNSER: There can be no question of any onus at all. I merely wish to prevent a delay in the case, as it is to be expected that tomorrow morning the document books of my colleague will be finished -- that is, of colleague Mueller-Torgow.
PRESIDING JUDGE CARTER: Of course, the Tribunal is without any authority to waive the 24-hour rule. If the prosecution doesn't agree we will have to abide by it and we will hear the witness at one-thirty tomorrow afternoon or as soon thereafter as we can get to it.
DR. LATERNSER: Your Honors, I shall then call the witness at one-thirty tomorrow afternoon.
PRESIDING JUDGE CARTER: You may proceed.
DR. MENZEL (Counsel for defendant Kuntze): May I bring to the attention of the Tribunal that before the recess we stopped at Exhibit 38, Document 51, in Document Book II, pages 41 and 42. It concerned the Greek sector. It is an excerpt from the enclosures to the war diary No. 2 from 1 January until 21 November 1942. The document is being submitted as contained as showing that a warning was given not to commit any act of sabotage and that for the rest the terms "hostage" and "reprisal prisoner" were being confused in the reports. On page 42 we have a daily report of the Commander Southern Greece to Armed forces Commander Southeast dated 29 of May 1942. I shall read from Section II:
"Special occurrences besides the combat activity of the troops.
"With regard to the Daily Report Ia Letter Register 40439/42, it is reported that three Greeks who were in possession of explosives were arrested by Italians. The Italian Army headquarters was contacted to the effect that it issued a decree which is to be published by the press and to be broadcast saying that in case such occurrences should be repeated hostages from Greek circles which are convicted of a hostile attitude or action will be shot."
That is Exhibit 38 to be followed by Exhibit 39 that is Document 45 in Document Book II on page 29 of the German. The English text is page 29 and 29a. It concerns an attack on airport Iraklion (Crete). The document is submitted as tending to establish that armed forces commander Southeast did not order any retaliatory measures but merely tactical measures on this occasion and also as establishing that a court martial investigation took place upon the order of armed forces commander South Kesselring. In this connection I would like to read:
"Attack on airport Iraklion.
"1830 hours: Military Commander Southeast orders teletype report from Commandant of Fort Crete concerning:
"1) When were Fortress Crete Division, Section Detachment, Airport Detachment warned of the Sabotage act that was to be expected?
"2) Who is responsible for guarding the airport?
"3) What additional security measures were taken after warning?
"4.) What orders were given to secure the coast line Mallia Inlet-Iraklion?
1950 hours: Military Commander teletypes order to Commandant Fortress Crete, Commander South Greece, and Commander Saloniki -Aegean: Enemy raid on Iraklion airport was successful. Guarding of all airports is to be strengthened, to prevent possibility of such recurrence."
I shall omit the next paragraph and proceed with Sub-Section 1:
"Forwarded with additional directions and telephonic and verbal explanations of details and execution last time 10th, 12th and 13th June 1942.
"Court martial proceedings against airport commandant begun on order of Commander-in-Chief South".
That was Document 45, Exhibit 39, to be followed by the last document on this topic, Document No. 21 in Document Book I on page 29. It will be Exhibit 40.
It is an affidavit of Ulrich von Fumette, dated the 31st of August 1947. He was the personal aid of General Kuntze. "General of Engineers Kuntze told me that he had commuted a death sentence to a prison sentence in the case of a Greek who had been brought before a court-martial -- I believe for possession of arms. I did not see the files myself." I shall omit the remainder of the paragraph and proceed with the next paragraph:
"General of Engineers Kuntze told me that the supply situation in Greece had become so serious, because in peace-time supplies had been received bysea. The capacity of the single-track railroad BelgradeNisch-Salonica-Athens was not sufficient to guarantee the supply of the German troops and the Greek population. For this reason he had told conferences with the Quartermaster General of the Army and the General in charge of transportation, to find ways to improve the supply situation. A certain percentage of the food supplies received had been handed over to the needy Greek population." I shall then proceed with the last paragraph:
"As far as I may voice my opinion, General of Engineers Kuntze was a soldierly, upright personality, simple and modest in his habits, a well-meaning superior and an energetic, loyal officer."
This concludes this particular topic and I shall now proceed with another topic; that is, the Greek losses in 1947 and threatened reprisals in Berlin. I shall begin with document 52 in Document Book 2, page 43. I give this document the exhibit number 41. It is an excerpt from the newspaper, "Stuttgarter Nachrichten" issued 30 April 1947.
MR. FULKERSON: I think , if your Honors please, I would like to object to this on the same grounds as the prosecution has advanced for the exclusion of other newspaper clippings.
DR. MENZEL: If it please the Tribunal, I should like to state in this connection that one ought to try to find out the truth and ascertain it, and that only a limited material is available for certain topics.
In this connection I would like to refer to Article 7 of the Ordinance, No. 7, according to which the Court is not bound by certain rules of evidence and is authorized to admit any evidence which may be of probative value and that the rules about documents are valid only as long as they do not infringe on that general rule. Of course, the conditions of Greece can not be shown by any other kind of material today.
JUDGE CARTER: The objection will be sustained.
DR. MENZEL: This objection having been sustained, I have to drop the next document which is also a newspaper clipping, copy of a newspaper clipping, and shall proceed with Document 54, Document Book 2, page 45, to be assigned Exhibit No. 41. It is an excerpt from the official Gazette of the city of Berlin, dated 10 July 1945. It has already been submitted and is presumed to be known.
MR. FULKERSON: If Your Honors please, I don't see why this particular document is not subject to the same objection that was just sustained. Further, the original has not been introduced in evidence. The best evidence rule has not been complied with.
JUDGE CARTER: I think this same exhibit was introduced yesterday and received, for the purpose merely of showing notice as to what occurred, similar to certain exhibits that the prosecution offered for the purpose of showing notice. The exhibit will be received, but there will be no necessity to read it, because it was read here yesterday.
DR. MENZEL: I did not have the intention of reading the exhibit. I merely wished to identify it. That was Exhibit 41. I shall now turn to the Commissar's Order and shall begin with Document 18 in Document Book 1 on page 24. This document to be exhibit 42. It is an affidavit by Hans Arthur Einbeck, who was with the 42nd Army Corps when Kuntze was the Commanding General of the Army Corps. The affidavit, dated 2 September 1947, reads:
"I herewith confirm that the Commanding General of the 42nd Army Corps, General of Engineers Walter Kuntze, prior to the beginning of the Russian Campaign, gave the verbal order to deal with all Russian Commissars taken prisoner according to martial law, and not to carry out the Commissar order.
How far this order corresponded to a directive by the 9th army, I am not in a position to say."
I shall now refer to the next document, on page 25 and 26. It is Document 19, to be exhibit 43. It is an affidavit of Major-General Weckmann, dated 4 September 1947, who was Colonel and Chief of the General Staff of the 9th Army, (General Oberst Strauss). "I was Colonel, Chief of the General Staff of the 9th Army (General Oberst Strauss) until 16 October 1941. In place of General Oberst Strauss, at present in hospital, I declare: I heard General Oberst Strauss give the verbal order not to carry into effect the "Kommissar-Befehl" (Commissioners' Order). I know of no instance of this order being contravened in the area under the control of the General Command 42nd Army Corps or the forces subordinate to it."
I shall now refer to Document Book 3 and to Document 73 on page 31, to be Exhibit 44. It is an affidavit by Heinz Ziegeler. It reads as follows:
"I was Chief of Staff with the Corps Headquarters 42nd Army Corps tin the period in which General (Engineers) Walter Kuntze was Commanding General of the 42nd Army Corps.
"The 42nd Army Corps joined the 9th Army just a few days before the start of the Russian campaign. The tactical orders had already reached the three subordinated Divisions at this time. The Corps Headquarters had to intervene only as regards the carrying out of these orders, that is to supervise the method of carrying out.
"When the Corps Headquarters was later subordinated to the 18th army in Estonia, the Commissar Order did not reach Corps Headquarters afresh from this authority.
"To the Corps Headquarters in Esthonia were subordinated:
the 217th Division after the middle of July and the 61th Division approximately the middle of August.
If these Divisions are believed to have been in possession of the Commissar Order the latter can only have received the Commissar Order from another authority in the period before the start of the subordination to the 42nd Army Corps.
"During my activity as Chief of Staff, no case came to my knowledge where the shooting of Commissars in the area of the Corps has been reported to Corps Headquarters."
This document is submitted as tending to establish that the subordination of the 217th Division took place only after the middle of July. This is important because of the Document Exhibit 592 which was submitted in the cross examination dealing with events from the beginning of July. The subordination of the 61st division and the statements made in this connection are important in view of the document 593 submitted for cross examination.
I shall now turn to the next document in the same document book; it is Document 74 on page 32 and 33, to be Exhibit 45. It is an affidavit by Eberhard Einbeck, dated the 26th of November 1947:
"I was Ia with Corps Headquarters XXXXII Army Corps in the period in which General Kuntze was Commanding General of the Corps.
I refer to my affidavit dated 2 September 47 in which I affirmed that General Kuntze, before the start of the Russian campaign, issued the order orally to treat Commissars taken prisoner in accordance with the Articles of War and not to carry out the Commissar Order, and declare in addition: - After the subordination of the XXXXII Army Corps to the 18th Army about the middle of July 1941, the Commissar Order has not been passed on by the XXXXII Army Corps to the subordinated Divisions.
Nor did the XXXXII Army Corps when it arrived in the area of the 18th Army receive the Commissar Order from the 18th Army either. If this Order had reached the XXXXII Army Corps from the 18th Army, I should inevitably have known this as Ia.
During my activity as Ia, no case came to my knowledge where within the area of the XXXXII Army Corps, Commissars have been shot.
The 217 I.D. was subordinated to the Corps Headquarters during the period from about the second half of July to about the middle of September 1941.
The 61st Div. was subordinate to the XXXXII Army Corps in the period from approximately the middle of August until the Corps Headquarters was detached from the 18th Army, As I still remember distinctly, the detaching of the Corps Headquarters took place before the operation against Dagoe began.
This would probably have been in the last third of September. I no longer remember the exact date accurately, nor can I ascertain it any longer. I do not remember that the 61st Inf. Div. had reported the shooting of Commissars in the battle for the Island of Oesel, If this shooting had been reported to Corps Headquarters, I would have been bound to know about it too.
The prisoner collecting points on the Oesel Island were under the 61st Div. employed there, the prisoner camps on the mainland were under the Commander of the Communication's zone of the 18th Army and not the XXXXII Army Corps.
The military police units of the Divisions received only action orders from the divisions, police instructions and orders, on the other hand, directly from the military-police Officer of the Army to whom the Military-police units were subordinate, in so far as service with the troops was concerned.
That was Exhibit 45.
The last document on the topic of the Commissar Order will be found in the same document book, Document 75, on page 34 and 35 of the German edition. This document is to establish that the subordination of the 61st Infantry Division was completed by the end of September 1941. While the shootings asserted by the prosecution took place in October and on the 26th of September, 1942.
I shall produce an additional document in this connection at a later stage. This document 75 is to be Exhibit 46. An affidavit by Joachim von Woedtke, dated the 3rd of December 1947:
"I was Corps Adjutant of the 42nd Army Corps during the time General of the Engineers Kuntze was Commanding General of the Corps.
"I was a witness when General Kuntze shortly before the start of the Russian campaign gave oral instructions to Division Commanders subordinated to him that captured commissars should not be shot, but treated as prisoners of war.
"Neither during the subordination of the Corps Headquarters under the 9th Army, nor during its Service under the 18th Army has any case become known to me of commissars being short within the area of the 42nd Army Corps.
"The 217th Infantry Division was during the period of about middle of July until about middle of September '41 subordinated to the 42nd Army Corps. The 61st Infantry Division served under the Army Corps Headquarters from about the second half of August to about the second third of the month of September '41, inclusive. The Army Corps Headquarters delegated the preparations for the operations against the island of Dagoe to the 61st Division, separated from the 18th Army and approximately in the first days of October was after a short rest in Pernau and Riga dispatched to Rumania by train. As far as I remember on 26 September 1941 the 61st Division was no more subordinated to the 42nd Army Corps. I can state with certainty that the Army Corps Headquarters received no knowledge of a shooting of commissars by the Military Police Troop 161. If such a report would have been received by the Army Corps Headquarters, I as Corps Adjutant would have had to know about it.
"The following I further wish to emphasize:
"I still remember clearly that during an official visit of General Kuntze with the 61st Division, General Kuntze made his position in regard to the treatment of prisoners of war clear to the Commander of the 61st Division and told him that he demanded decent treatment for all prisoners of war. This attitude was entirely in line with the high ethical conception that General Kuntze had regarding the principle of war conduct.
"Since I accompanied General Kuntze on most of his daily trips to the Divisions under his Command, I was often a witness for his personal care in the humane treatment of prisoners of war and his endeavor to alleviate the fate of the prisoners of war."
So much for Exhibit 46.
I now come to the last but one topic of my defense. I merely wish to submit but one document on the topic of the Commando Order. It's Document 20 on pages 27 and 28 in Document Book 1, to be Exhibit 47. It's an affidavit by Kurt Rittmann dated the 5th of September 1947. It reads:
MR. FULKERSON: I would like to object to the introduction of this document on the ground that it's irrelevant because, so far as I can tell, it relates only to the time after the defendant Kuntze left the South-East.
DR. MENZEL: It's the question in this case whether General Kuntze had received the Commando Order at all; whether he forwarded it and transmitted it or whether he participated in any way in this Commando Order by ordering its carrying out etc. Of course, he was at that time with the Reserve Army. It's to be established by this very document that when with the Reserve Army he had no influence at all on the enforcement of the Commando Order. He has after all been charged with having participated in the Commando Order. He must be afforded an opportunity of proving that that was not the case even at the time when he was with the Reserve Army. That was the only time he could have had anything to do with it.
JUDGE CARTER: We'll receive the exhibit for what it's worth.
DR. MENZEL: May I then read from Section 1:
"As from 1 September 1942 I belonged to the Staff-Chief of Army Equipment and Commander of the Replacement Training Army, Generaloberst Fromm. On 1 October 1942 I was detailed as referent Ia (Captain) to the staff of the recently founded office 'Chief of Training of the Replacement Training Army'. General of Engineers Walter Kuntze was appointed chief of this office; as far as I remember, he arrived in Berlin for this purpose towards the end of September 1942, but at the latest, on 1 October 1942."
I shall omit the first sentence under Section 2 and proceed:
"Only the service schools, schools for officer aspirants, schools for non-commissioned officers, as well as their instructors, were subordinated to the command of the 'Chief of Training of the Replacement Training Army'. The reserve and training units of the Replacement Training Army were directly subordinated to the Commander of the Replacement Training Army. The 'Chief of Training of the Replacement Training Army' could only issue orders to them in the name of the Commander of the Replacement Training Army with regard to the training."
I shall omit section 3 and proceed with section 4:
"The so-called 'Commando Order' had therefore nothing to do with the tasks of the 'Chief of Training of the Replacement training Army'. If this order was distributed at all within the Replacement Training Army, this distribution would not have been the task of the Office of General of Engineers Kuntze, but that of Staff/Chief Army Equipment and Commander of the Replacement Training Army, Generaloberst Fromm.
"It may well have been possible that the 'Commando Order' was forwarded to the office 'Chief of Training of the Replacement Training Army' for mere orientation. This office was not concerned with the forwarding of this 'Commando Order' to subordinate offices, because for possible front line assignments (Einsatzaufgaben), the service schools, etc., with their instructors, were not subordinated to the 'Chief of Training of the Replacement Training Army', but to the 'Chief of General Army Office' (General of Infantry Olbricht summarily shot on 20 July 1944), a further office of Chief Army Equipment and Commander of the Replacement Training Army.
"5. To sum up, I again declare:
"In October, 1942, General of Engineers, Walter Kuntze, was chief of the office 'Chief of Training of the Replacement Training Army' with the Army High Command (OKH) Chief Army Equipment and Commander of the Replacement Training Army. It was neither his job nor his duty to participate in the distribution or the execution of the so-called 'Commando Order'. As referent Ia of his office I should have had knowledge of this."
The last topic of my defense will be an appraisal of the personality and character of General Kuntze. I should like to submit a series of documents, but I shall only read fragments of them and I beg the Court to take judicial notice of the remaining contents which will not be read. I shall begin with Document 22 in Document Book 1 on page 30, to be Exhibit 48. It is an affidavit by Emil Quandt, dated 29 July 1947, who has known General Kuntze for almost forty years as is evident from the affidavit. The affiant says, among other things -- that is in the fourth line from the top:
"I, as all his comrades, esteem Kuntze very highly for his clean, noble character, his untiring diligence, his honesty, his attention to details. He also showed these qualities towards the enlisted men and was very popular. Whatever Kuntze did, he did thoroughly, always conscious of his respond sibility; he never did anything he could not have reconciled with his conscience."
I beg to proceed with about the ninth line from the bottom "I am absolutely certain that General Kuntze never infringed upon human rights.
His pure, soldierly character of the best tradition eliminates absolutely any inhuman behavior. However, I do not wish to deny that the cunning and callous way of fighting by partisans which nowadays again becomes apparent during fights in Northern Greece, required more stringent measures than customary. If General Kuntze ever ordered these harder measures to be applied, which, however, I still do not believe, then he only did so in order to protect his men from the proven cruelties and atrocities committed by the partisans, and to defend the position that he had been ordered to hold."
This will be followed by Document 24, in this same document book, on pages 33 and 34, to be Exhibit No. 49. It's an affidavit by Kurt Zindler, dated 1 October 1947. I shall read the beginning:
"General of Engineers Kuntze was Commander General of the XXXXII Army Corps from the spring of 1940 until October 1941, during which time I was Commander of the Headquarters of this Army Corps, and was continually in close touch with him. I recall his high qualities as a man and as an officer, whose chivalrous principles became particularly apparent in enemy country; I well remember the following:
"Before the beginning of the campaign in France, General Kuntze issued strict orders against every kind of plundering."
I shall proceed four lines below:
"If any warehouses or factories were found in the headquarters' area, then I had to post a guard over them and entrust their protection to the following troops. As the main baggage with the canteen was mostly far behind, the General's batman once asked me for a piece of soap for the former, because the General would not permit him to take such a piece from his quarters, although there was plenty of it available."
I shall continue:
"The General was from dawn until late evening right in front with the combat units during the whole campaign. On one occasion, the adjutant accompanying him was killed by a shot in the head. His courage was as well known as his modesty. During the whole day he lived on slices of bread and drank from his field bottle. When he arrived at his quarters in the evening, he refused every special meal and demanded the field-kitchen midday meal, which, in the heat, was often difficult to keep."
At the end of this document I should like to read from the next paragraph. It's the last paragraph on page 34:
"At the beginning of June 1941, a few of us gathered together in the officers' mess, received the order to leave for the East. General Kuntze immediately made his farewells and I accompanied him when he left. In the hall he looked at me seriously and said, literally: 'War with Russia, Zindler Do you know what that means?' Then he thanked me for accompany ing him and went home alone. From this time on he appeared to me to be every more serious and quiet. His official discipline obviously became milder and milder. I was continually under the impression that he suffered under this development in some way, without saying anything about it."
I proceed with the last sentence:
"To me, General Kuntze was a shining example of the officer whose thoughts and acts were always chivalrous and noble. I do not regard him as being at all capable of consciously committing an unjust action against those entrusted to his care."