The German Plenipotentiary General in Croatia was never in any way subordinate to the 15th Mountain Amy Corps.
3. Reprisal Measures:
MR. FULKERSON: I have no objection to this affidavit but Dr. Tipp has read enough of it now so that the Tribunal can see that it is strictly cumulative of what we have gone over time and time before, and I would like to ask that he be restricted to reading that part of it which brings in something now rather than simply replowing old ground here; especially in view of the length of the affidavit.
DR. TIPP: Your Honor, in reply to that, I would like to say that if the prosecutor wants to express that the contents of this affidavit are already regarded as proved by him, then of course I agree. I assume that if the prosecutor regards this point as having been proved, then I am in complete agreement.
MR. FULKERSON: I am not willing to agree that the point has been proved but I am willing to agree that it has been read.
PRESIDING JUDGE BURKE: You may proceed.
a.) Jurisdiction: According to existing orders the ones competent for reprisal measures in Croatia were the Divisional Commanders in conjunction with the territorial offices and the Croatian authorities. The decision as to the imposition of reprisal measures rested with the latter. The Corps as such could never have ordered reprisal measures on its own initiative. For this purpose the Croatian representative attached to the Corps would have been competent. The same arrangement had also existed already with the Commander of the German Troops in Croatia.
Court No. V, Case No. VII.
I skip the next paragraph and continue with "b" on page 3:
"Procedure: According to order, reprisal measures could not be carried on without a warning to the population and announcement of the measures intended. In connection with this I recall the following individual case as an example:
"In the area of Kostajnica an announcement of this kind in hectograph form was posted, among other places, on a telegraph pole by the Cossack Regiment of Colonel von Wolf. The Commander of the Cossack Division, General von Pannwitz, objected to this form and ordered that announcements of this kind must be set up in poster type in easily visible places. He sent expressly to Agram to have such warning placards printed quickly in the way in which he required.
"Reprisal measures were always only carried out if the incidents had become numerous and the security of the troops required that severe steps be taken. I remember, for example, the following incidents, which in spite of their seriousness were not followed by any reprisal measures at all:
"An engineer platoon, which was to be used for assisting in work on the island of Solta, drove over a mine on the way and had a number of wounded.
"General von Leyser was driving with a large convoy on the Knin-Split road; the car in front of the General's car drove over a mine.
"The Divisional Commander of the 264th Infantry Division drove over a mine on the Knin-Split road and was seriously wounded.
"The Divisional adjutant of the 264th Infantry Division drove over a mine and was carried away seriously wounded in a medical truck. This car drove over another mine, the Adjutant was killed.
"Destruction of Houses for Military Reasons: With the conditions prevailing in Croatia the case could also arise that houses had to be destroyed for purely military reasons even outside of battle operations. I remember that acts of sabotage with mines used to occur Court No. V, Case No. VII.
repeatedly at the road bend near Tregir. Since the road embankment was extremely steep -- even for a climber it was impossible to get up over the embankment -- and the road bend was guarded at beginning and end only the persons who lived in two houses nearby halfway up the bend could have been responsible for these attacks, or at least must have known about them. They were warned repeatedly but when the incidents continued to occur and the Field Intelligence Service showed beyond any doubt that they were involved in the attacks both houses were burned down. From that very day the demolitions ceased. It is quite possible that this destruction was reported as a reprisal measure, although it was merely a question of military necessity.
"Here I would like to mention, your Honors, that this burning down of the houses near Topola is mentioned expressly in a prosecution document and General Leyser described this incident in a similar way in his examination.
"Cooperation with SS and SD: SS units recognized in principle only a tactical subordination to the Corps. Even in this case the Corps did not have any disciplinary authority over the SS. It did not even have the right to make any criticism whatsoever about the behavior of the SS. It could neither praise nor blame. There was never any jurisdiction over SS members. On the contrary, the SS was always subordinate to its own officers with respect to military service and discipline. Interference against measures of the SS was therefore only possible if the Corps reported to higher echelons through channels via the Army and Army Group. However, in such cases the Reichsfuehrer SS backed up the SS as a matter of principle.
"SD units were never under the Corps. On the contrary, they were merely assigned to it, that is, they received rations, billets and motor fuel through the Corps. They did not accept orders from the Corps for their missions, they never once gave any information about their work either. As a rule they declared that they had special instructions from their superior SD offices and that these Court No. V, Case No. VII.
were secret. SD units made exactly the same statements to me later in Russia. Consequently, the work of the SD went on outside the sphere of influence of the Corps.
"I have the following to say about the report contained in Exhibit 372: At the wish of the Croats, while the state of emergency still existed in Banja Luca, the Army ordered a searching operation for any partisan suspects who may have remained behind. The Police District Leader of Banja Luca undertook this task of the search, since because of the state of emergency he was still under the Corps, but he asked to be allowed to wait before carrying it out until he had received enough trained men from Gagreb. In the meantime, however, this intention had become known to the population and the search led to no result."
Figure "6" which concerns itself with the amount of truth contained in the reports I would like to draw to the Tribunal's judicial attention. I do not need to read it. I continue with Paragraph 7:
"Prisoners: The unit sent prisoners of war to divisions which had small assembly points. From there they were shipped still farther to the rear in empty supply trucks along the supply route. There were large assembly points in Agram and Belgrade, which were under the territorial offices. The Corps itself had nothing to do with the whereabouts of the prisoners. The Corps (Quartermaster) merely collected the reports of the divisions and forwarded a compilation of them to the Army.
"It was only when a large number of prisoners were captured, as, for example, when bringing back the disarmed Italians, that the Corps had to establish temporary assembly points for feeding and passing on the prisoners."
I omit the next paragraph and continue with Figure 3:
"8. Operation "Firebrand": Concerning Operation "Firebrand" I know the following in detail:
Court No. V, Case No. VII.
"In January 1944 the 2nd Brigade of the 1st Cossack Division, which up to then had still been stationed in the Serbian area, was brought into the area of the Corps. On this occasion it was decided to mop up a former Yugoslav troop training camp for mountain troops in the Kezara Mountains in the Una-Sana bend. Officially this land was not inhabited and was supposed to become a Croatian troop training camp again. Fairly large quantities of hay had been discovered there through air reconnaissance, and numerous and extensive raids and acts of sabotage had originated from this area. The 15th Mountain Army Corps gave orders, therefore, that the Cossacks should march through this region and take the stores of hay away with them at the same time. Any partisan quarters that might be found -- for indeed there could not be any regular "villages" -- were to be destroyed. Because of the great difficulties encountered the operation was not carried out by the Cossacks according to plan, it had only a very slight effect.
"If the report of the Cossack division mentioned "laying waste entire districts" it is only understandable to me in this case if I take into account the predilection of the Commander of the Cossack Division, General von Pannwitz, for very strong expressions. Besides that, the Cossacks were better than their reputation. To be sure, they were a thorn in the side of the Croatian authorities because of their nationality; many atrocity stories about the Cossack Division, therefore, was built up beyond all proportion."
Paragraph 9 deals with General von Leyser's character and a similar description of General Foertsch's character is also given.
I will continue with Figure 10:
"Evacuation of the Islands and the Coast: Since the Allies were expected to make a landing from the sea the evacuation of the coast and the islands lying in front of it was a matter of course. At the very least these areas had to be cleansed of elements suspected of being partisans. That was an absolute necessity from a tactical Court No. V, Case No. VII.
point of view. This also became clearly evident during the first commando operations on Solta, where it was unequivocally proven that the population had given assistance. The evacuation of the islands and the coast was planned for this military reason.
"There followed endless negotiations, orders and remonstrances on the impossibility of carrying them out, with half-measures and the postponement of what had been ordered. The chief difficulty here was the behavior of the Croatian authorities, who on the one hand were unwilling to forego their right of having a joint say in the matter and on the other hand did not have sufficient means at their disposal for caring for the evacuated population.
"A further insurmountable difficulty was the lack of shipping space. The Italians had taken all the larger boats with them on their retreat and the partisans had stolen and destroyed what boats were left, even the smallest. Under these conditions it was not at all possible in practice to carry out the evacuation of such a large population.
"To begin with, therefore, only the partisan suspects were supposed to be deported. However, the latter first had to be picked out by the SD agencies assigned for this purpose, upon which the Corps had no influence at all. In the end, therefore, there were only very small deportations. For example, I remember that on the islands the population was called upon to leave the land voluntarily. The part of the population which obeyed this summons settled on the coast and after some time had to be transported back again at their request, since they pointed out in their own justification that they had come voluntarily and that those who had stayed behind had not been forcibly evacuated either. It was naturally not reported to higher echelons that they had been transported back."
The next paragraph concerns an individual incident in the evacuation. I do not need to read it.
Figure 11 deals with measures taken by General von Leyser in a special case and I do not need to read this either.
The affidavit was given on the 10th of November 1947 and duly sworn and certified by me.
Leyser Document 62, if it please the Tribunal, I would like to withdraw. With regard to Document 63 I would like to say the following. After I had received this affidavit and it had been copied and included in the document book, unfortunately, an accident happened to the original and ink was spilled over it and therefore it could not be introduced here. I have already written to the affiant for a new copy and I hope it arrives in time, Your Honors, and if it does I would like to reserve the right to present it then.
PRESIDING JUDGE BURKE: What was the nature of the accident, Dr. Tipp?
DR. TIPP: Ink was spilled over it, Your Honor, and it could no longer be read.
PRESIDING JUDGE BURKE: Did you compare this affidavit with the one on which the ink was spilled?
DR. TIPP: Yes, yes, it was compared, Your Honor.
PRESIDING JUDGE BURKE: Is it an accurate copy?
DR. TIPP: Yes.
PRESIDING JUDGE BURKE: Any objection to it being admitted?
MR. FULKERSON: No, no objections, if Your Honor please.
PRESIDING JUDGE BURKE: You may proceed to make such use of it as you choose.
DR. TIPP: Thank you, Your Honor.
Then the next document I would like to present in this connection is Leyser Document No. 64 and this becomes Leyser Exhibit No. 59. It is an affidavit by Juergen Justus who has already given affidavits for General von Leyser in another connection. I would like to quote briefly from it:
"In order to supplement my affidavit, dated 20 June 1947, I am now giving an incident to the records which I remember and which is in connection with this."
The affidavit of the 20th of June, to which the affiant refers here deals with the commissar order.
"At the beginning of July 1941 two to three Russian planes attacked the divisional command post of the 269th Infantry Division. Shortly before we changed our positions, German fighter planes appeared and shot down two Russian planes. We were able to observe that one crew member bailed out of each of the Russian planes and slowly approached the ground by parachute. Messengers on motorcycles from the divisional staff received the order to take the Russian fliers prisoner and bring them to the command post at once. Shortly thereafter we heard a brief exchange of fire and after some time the messengers reported that one of the Russian fliers had been captured by troops moving in the terrain; the other, however, had opened fire immediately after his feet touched the ground. Thereupon the troops had also opened fire which resulted in the death of the Russian. They had determined that he had been a commissar.
"While I myself witnessed this incident I have frequently heard from the combat troops that smaller as well as larger encircled Russian groups would, by orders of their leader, refuse to be taken prisoner, in the ensuing fights the leader was in most cases killed and in almost every case it was determined that those people who had given the order to resist had been commissars. To my knowledge this fact was always emphasized in the reports made by the troops."
The affidavit was given on the 18th of December 1947 and duly sworn before a notary in Hamburg.
Your Honor, this concludes my case in chief for General von Leyser.
PRESIDING JUDGE BURKE: Do you wish to rest at this time for the defendant von Leyser?
DR. TIPP: Yes, Your Honor. That has concluded my case in chief.
PRESIDING JUDGE BURKE: Do you wish to make use of the affidavit on which the ink was spilled?
DR. TIPP: Your Honor, I would prefer to wait until the original comes if it comes by tomorrow evening; if it doesn't arrive by tomorrow evening, then I think I can dispense with it.
PRESIDING JUDGE BURKE: I don't see the necessity for it; if you wish to make use of it the Tribunal has conceded that you may do so.
DR. TIPP: I don't think that it is absolutely necessary, Your Honor. At least I should not like to introduce it at this point.
PRESIDING JUDGE BURKE: Then you rest.
MR. FULKERSON: Excuse me; before Dr. Gawlik begins I would like to request that the defense counsel make a brief pause between the various documents because we only got these document books this morning and I haven't had a chance to look them over very carefully and, just as a matter of courtesy, I would like to be able to at least glance at them before they go into evidence.
PRESIDING JUDGE BURKE: I assume you will have no objection to that procedure, Dr. Gawlik.
DR. GAWLIK (Counsel for Defendant Dehner): I am sorry; I didn't quite understand the first sentence. Could I hear it again, please?
No, I have no objection, Your Honor.
With the permission of the Tribunal, I would like to submit today Document Books Number VII and Dehner Number VIII. I have been told that the English translation is in the possession of the Tribunal. The first document I would like to submit is from Document Book Dehner No. VII. This is Dehner Document No. 38 and this becomes Dehner Exhibit No. 34. This is an affidavit by Henrich von Behr dated the 15th of December 1947. It is on page 103 of the document book. Under figure "1" it states:
"From July 1943 till March 1944 I was commanding officer of the 173rd Reserve Division in Croatia."
In this connection I would like to draw the attention of the Tribunal to the fact that the 173rd Reserve Division appears in individual daily reports submitted by the prosecution. Henrich von Behr was the Commander of the 173rd Reserve Division.
Under Figure "II" Henrich von Behr first of all makes statements about the question as to whether Croatia was an sovereign state within the meaning of international law. He states and I quote:
"The German forces considered Croatia an allied, sovereign state, and treated it accordingly. The Croat government had the executive power, and not the German Military Commander. As far as I know, the German forces have always respected the rights of the Croat government, the German forces were not permitted to effect any sequestrations or requisitioning. The German forces could only obtain billets if they were given them by the Croat authorities. No services were demanded from the population, If any of the Croat population were working for the Germans, it was only on the basis of voluntary employment contracts."
Under figure "III" Heinrich von Behr describes the relations between the German police assigned in Croatia to the German Wehrmacht, and I quote:
"Apart from the German troops in Croatia, police units and other German agencies were assigned to Croatia. The police units and the other German authorities were not subordinated to the German Military commander. The German Military Commander's staff could not issue either orders or any instructions to the German agencies."
Under Figure "IV" the affiant states an opinion about whether the bands which appeared in Croatia were to be regarded as belligerents within the meaning of international law. I quote:
"The bands who operated in Croatia, usually had no insignia which could have been identified from a distance. They wore civilian clothes. I also know that they were partly wearing German uniform clothing. They could not be distinguished from the civilian population at all. Furthermore, they usually did not carry their weapons openly. I also know that during their operations they did not observe the laws and usages of war, especially did they fail to treat German soldiers, who had been captured by them, as prisoners of war.
"I can recall even now that, for example, partisans stopped a train on the line from Rumanach Sabac, shooting a German officer and enlisted man. No reprisal measures were taken for this attack. Furthermore, in August 1943, the partisans raided an engineer company in the area around Ilok. Of the soldiers whom they captured, many have been killed; in particular did they kill all the wounded, if these were unable to march any more."
Under Figure "V" von Behr states that within the area of the 173rd Reserve Division of which he was the Division Commander the German troops carried out no reprisal measures. I quote:
"As commanding officer of the 173rd Reserve Division I have never given an order to arrest hostages, to kill hostages, or to destroy villages. In the area of the 173rd Reserve Division, during the time I was in command of this division, troops of the 173rd Reserve Division never arrested hostages, killed hostages, or destroyed Croat villages as a reprisal measure for actions in violation of international law. I can no longer recall whether any orders at all, and what kind, before the middle of September 1943, have been received by the division concerning the execution of reprisal measures. I remember, having inspected the document NOKW 597, Exhibit 340, that the 2nd Panzer Army's order dated 15 September 1943 was received by the division. However, no reprisal measures were taken by the division based on this particular order. Pursuant to this order, reprisal measures were left to the Croat Police. As far as I can remember now, the 173rd Division had no units of the secret Field Police and of the Field Gendarmery. There were no urgent cases in the sense of the order of 15 September 1943. In any case, I was of the opinion that the sabotage cases of which I was informed did not necessitate immediate action by excluding the Croat, authorities. The Corps never objected to the fact that the 173rd Reserve Division did not execute any reprisal measures."
Under Figure "VI":
"I have been shown the following letters from the document NOKW 658, Exhibit 375:
1. Daily Report dated 24 September 1943 2. " " " 1 October 1943 3. " " " 4 October 1943 1. " " " 9 October 1943 5. " " " 20 October 1943 6. " " " 3 November 1943 7. " " " 5 November 1943 6. " " " 7 November 1943 9. " " " 12 November 1943 10.
" " " 3 December 1943 "Furthermore, I have been shown from the document NOKW 073, Exhibit.
.. the daily report of the 2nd Armored Army of 8 December 1943, from the document NOKW 075 the copy of the daily report dated 6 November 1943, and the daily report by the inspector of the railroad security dated 11 November 1943.
" I believe it to be absolutely impossible that a reprisal measure mentioned in these reports has been executed by troops of the 173rd Reserve Division. In this connection I must make the following statement: re Section 8, teletype message of 7 November, 1943: I can definitely state that the hanging of 19 Communists, mentioned in the teletype message dated 7 November 1943 under II, was executed by the Croat police and the Security Service. I cannot recollect any of the other incidents mentioned in the documents, I would be able to remember them, however, if I had ordered them, or if they had been executed by the forces under my command.
Under Figure "VII":
"Whenever I received intelligence about a bandit attack, I merely reported this to the Corps. The same applies, when the police informed me that they had executed any kind of reprisal measures. I already incorporated this police report in my daily reports to the Corps. The fact that any incidents were mentioned in the daily reports under "173rd Division", shows merely that they took place in the area of the 173rd Reserve Division. I did not have the supreme command in the area of the 173rd Reserve Division.
The Croat authorities were entrusted with the executive power, and they were supported in their task by the police. The Croat and German police forces were not under the command of the 173rd Reserve Division".
Under Figure "VIII":
"The operation Kammerhofer was an independent operation by the police under the command of the former SS-Gruppenfuehrer Kammerhofer. The 173rd Reserve Division did not order this operation. All the measures taken during this operation were executed by the police, and the 173rd Division had no say in the matter at all."
Under Figure "IX":
"During the time I was in command of the division, there were no hostage camps in the area of the 173rd Division. As far as I can remember, hostage camps had been introduced by the Croat government, who had the sole responsibility for those camps".
Under Figure "X" the affiant talks about how far and to what extent there were Italian troops in the area of the division. I quote:
"Except for a small detachment of 30 men in Vukovar, there were no Italian troops in the area of the 173rd Division. I can definitely state that none of these members of the Italian Army was executed by shooting. Nor were any measures taken against these people which would have been in violation of international law," End of quotation.
Under Figure "XL" there is mention of to what extent the division undertook evacuations and whether labor camps and concentration camps existed in the area of the division, and I quote:
"No evacuation of civilians have taken place in the area of the 173rd Reserve Division; nor was the 173rd Reserve Division in charge of concentration camps, labor camps, or collection camps for partisans.
During the time I commanded the division, the troops of the 173rd Division never compelled any persons to go to Germany. The division had no power to order such measures.
The next document I would like to present is contained in Document Book Dehner No. VII. It is Document Dehner No. 39. This becomes Exhibit No. Dehner No. 35. This is an affidavit by Dr. Karl August Schlegel, dated the 5th of January, 1948. It is Dehner Document Book No.VII, page 107 to page 111. Personal details about Dr. Schlegel are contained in the first paragraph and I quote:
I have know General Dehner since 1943; at that time the LXIXth Reserve Corps was activated in Vienna. I was the Corps physician with the staff. In this capacity I had good connections with all the officers of the staff. Thus, I have good information about what happened with the Corps and am in a position to make statements about the attitude of the individual members of the staff.
Under figure I there are fist of all statements about whether Croatia was an sovereign state, and I quote:
Croatia was an independent State in alliance with Germany. The sovereign rights of that state were strictly respected by the German Wehrmacht. Thus, the German Forces in Croatia were not able to claim any billets of their own accord, but rather received the allocations from the Croatian authorities. Neither were the German forces entitled to requisition food in the country. The soldier's pay was issued, it is true, in Croatian currency, but the rate of exchange was very unfavorable for the soldiers, so that with 10 days pay very few things could be bought. This was done in order not to harm the economy of the country.
Under figure two, the attitude of the corps Staff and especially General Dehner's attitude towards the population of Croatia is described. I quote:
General Dehner's attitude to the population of Croatia was a thoroughly friendly one. He considered their interests, whenever that was feasible. Thus, I know that in many cases in which military reasons had required the destruction of Croatian villages, he failed to do so out of consideration for the population of Croatia.
The relationship between the population of Croatia and the German forces, in particular the Corps Staff, was a very good one. I also know that General Dehner never regarded the Croatian population as an inferior race and was never influenced in his behavior towards the population by racial prejudices, as used to be a characteristic of National Socialism.
Then the next paragraph states, I quote:
Likewise, I know from my own observation that medical and dental care of the Croatian civilian population was in many places endangered by the lack of indigenous doctors.
This lack was made good by the employment of German physicians and dentists.
Under figure III, the treatment of captured partisans, especially wounded and sick partisans, is described, and I quote:
Wounded or sick partisans who were in German field hospitals were treated the same way as German wounded or sick soldiers. I myself rather often visited hospitals and was satisfied that no distinction was made in the treatment of the German soldiers and of the partisans. All medical skill was used on behalf of the partisans just as was done for the German soldiers.
From figure IV, it can be seen that General Dehner always made objections to excess committed by the Cossaks as far as he could as Commanding General. I quote from Figure IV:
From conversations I had with General Dehner and some members of his staff I know that there were rather strong tensions between General Dehner and the commander of the Cossack Division, Brigadier General von Pannwitz.
These tensions were caused by the fact that the Cossacks always passively resisted the orders of the Corps. Excesses committed by the Cossacks were, as soon as they become known at the Corps, most strongly disapproved by General Dehner.
From figure 5, one can see that the German police units in Croatia and the units of the Croatian army did not belong to the German Wehrmacht, especially the Headquarters of the LXIXth Corps. I quote:
The German police units in Croatia and the units of the Croatian army did not belong to the corps. They were independent formations, which were not under the command of the Corps. This I am able to assert for the reason that otherwise I should have had the medical supervision of these units. To what extent these units were occasionally placed under the command of the corps for individual operations, is not known to me. Medical care of the German police units and of the units of the Croatian army was exclusively in the hands of doctors of those units.
Under figure VI, the affiant comments on the execution of hostages by shooting and about his knowledge of labor camps:
It has never come to my knowledge that the execution of hostages by shooting was ordered or carried out by the LXIXth Res. Corps. Neither had it ever come to my knowledge that the Corps maintained labour camps or hostages camps. This would certainly have come to my knowledge in my capacity as Corps physician.
Under figure VII, Dr. Schlegel gives statements about General Dehner's personality, especially about his religious attitude, and I quote:
In conclusion I should like to mention that General Dehner made great efforts to arrange for the spiritual care of the Wehrmacht. He saw to it that on church holidays the soldiers were given the opportunity to attend the religious services.
The next document I would like to submit is contained in Document Book VIII. It is Document Dehner No. 40, and this becomes Exhibit No. 36.
MR. FULKERSON: I would like to object to the introduction of this document. The Court will notice that it was executed last Thursday on January 8, when the defense knew perfectly well that there was a great danger of their running out of testimony before the end of the week. Yet, instead of having this witness here where we could cross-examine him, his affidavit was taken and it is now sought to be introduced. The affidavit, if the Court will notice, was executed here in Nurnberg.
PRESIDING JUDGE BURKE: What is your answer to that, Dr. Gawlik?
DR. GAWLIK: The statements made by this affiant are not so important. They are only of supplementary importance, and I did not think that they were important enough to bring the witness here into the witness stand and therefore to take up the time of the Tribunal. The affiant talks about the independence of Croatia, about the question of whether the bandits were to be regarded as belligerents.
PRESIDING JUDGE BURKE: I think it has been the policy of the Tribunal in the past, Doctor, that if a witness is personally available, he should be presented for cross-examination and unless there is some better reason indicated, I think it will be the feeling of the Tribunal that the objection be sustained. The objection will be sustained.
DR. GAWLIK: Then for the moment this brings me to the end of my presentation of documents. I still have one document book, three document books to present but I would like to state that these just consist of individual affidavits which have not yet been translated. I will submit these documents as soon as the Tribunal is in possession of the translation.
PRESIDING JUDGE BURKE: But before the close of the session tomorrow afternoon?
DR. GAWLIK: Well, your Honor, it doesn't depend on me. I can present them at any time. I haven't any influence on the translating department.
PRESIDING JUDGE BURKE: I am informed by the presiding judge that they will be out and ready for presentation before the close of the session tomorrow afternoon.
DR. LATERNSER: Your Honor, I regret very much that I have to inform the Tribunal for the second time that the defense has no further evidence because the rest of the documents are still either with the translating or the mimeographing department, but I would like to inform the Tribunal that this afternoon at one-thirty I have two witnesses to examine. The first one is the witness Josef Kaiser and the second is Sergej Hirschmann. In a letter dated the tenth of January, I have already informed the prosecution about this. I will be ready at half-past one this afternoon to examine these two witnesses.
THE PRESIDENT: Dr. Laternser, the Tribunal has before it Document Book No. VI for Felmy and Document Book VII for von Geitner.
Is defense counsel in position to present them at this time?
DR. LATERNSER: Your Honor, my two colleagues certainly didn't count on these two books being ready so early. I will inform them at once so that they can present them. Perhaps it would be a good idea if the Tribunal took the recess now and I will look for my two colleagues at once.
THE PRESIDENT: The Tribunal will take its morning recess at this time and will reconvene at 11:05.
(A recess was taken.)
JUDGE BURKE: You may proceed, Dr. Sauter.
DR. SAUTER: If it please the Tribunal, regarding the defendant von Geitner I have some more documents to be submitted to you. They are contained in Document Book Geitner, Volume 7, Document Book 7. First, there is an affidavit by a United States citizen, Fritz -- abbreviated Fred - Obermayer. This affidavit is signed by Obermayer. It has been certified and authenticated -- duly authenticated in the United States of America, and has been sworn to by the affiant.
MR. FULKERSON: I object to this document, Your Honor please. It is another one of these character affidavits. Part of it has to do with events that occurred during the first World War, the rest of it has to do with events that are not clearly defined as to the exact time, but it simply says "well in to the Hitler years." At any event, it is completely outside the period covered by the indictment.
JUDGE BURKE: What exhibit number did you give it, Dr. Sauter?
DR. SAUTER: It is to be Exhibit 173. May I add it is our view that in appraising the character of a defendant his qualities and his behavior in former times also ought to be referred to?
JUDGE BURKE: It will be accepted, Dr. Sauter, for whatever probative value it may have.
DR. SAUTER: The first part of this affidavit of the American citizen, Fritz Obermayer, describes the attitude of the defendant, Ritter von Geitner, in the period of the first world war towards his Jewish fellow soldiers. Will you please take judicial notice of the statement and note that already at that time the defendant Geitner distinguished himself for tolerance and generosity? In the second part the affiant describes a meeting -- an unexpected social meeting with defendant von Geitner during the second World War. These statements can only be understood properly if one realizes that at the time there were posters displayed on coffee houses to the effect that Jews were not to enter these restaurants. The witness, Obermayer, however, did enter such a restaurant.
He happened to meet defendant von Geitner and the statements of the affiant show how decent and tolerant Geitner had been at that time. I attach importance to this affidavit, if the Tribunal please, because it is an affidavit voluntarily executed by the affiant upon his own wish and because he sent it from the United States. He had apparently read in American newspapers that defendant Kurt von Geitner was in court--.
MR. FULKERSON: I would ask that Dr. Sauter reserve his comments and remarks and testimony about this document for his final argument.
JUDGE BURKE: I think that would probably be the appropriate way to handle it, Dr. Sauter.
DR. SAUTER: It is strange that the prosecution always claims the right to tell us where they obtained their evidence, and exercising considerable latitude in introducing its own. This is my Document 201, and if now for the first time I began by stating how the document reached me -- then the prosecution protests. I assume that the court is interested in knowing, how Herr von Geitner who has been interned for 2½ years, is getting an affidavit from an American citizen, and I thought the court might like to know how this came about.
JUDGE BURKE: Dr. Sauter, you will almost be telling us pretty soon.
DR. SAUTER: Pardon?
JUDGE BURKE: You will almost be telling us how the affidavit came, pretty soon. We will pass on to the next item.
DR. SAUTER: May I request the Tribunal however that I may correct an error which I made with the exhibit number? I stated that the document was to be Exhibit 173, but it is actually to be 174. Would you kindly correct that?
JUDGE BURKE: Very well, Doctor. The correction is made.