As General KUNTZE stated in the witness stand and as was confirmed by the witness HOLSTEIN - furthermore by witness v. GEITNER in his testimony of 27 October 1942 - and by witness FOERTSCH in his testimony - he immediately took advantage of the improvement of the situation after the successful conclusion of the battles for Uzice at the end of November 1941 to alleviate matters.
Thus he influenced General BADER towards mitigating the implementation of the reprisal measures. The result of this influence was that General BADER in his order dated 22 December 1941 - reduced the reprisal ration to 1:50 and 1:25 effective as of 5 December 1941.
This order, however, and this must be particularly emphasized did not decree an inflexible application of this reduced reprisal ratio in every case. The nature and scale of each reprisal measure rather depended exclusively on the behavior of the opponents, that is, on the facts in the individual case, as is proved by the reprisal measures ordered by the Plenipotentiary General in Serbia which are cited in the prosecution documents. Therefore the order of a reprisal ration contained in General BADER's decree dated 22 December 1941, which states merely the maximum, cannot be regarded as a forbidden measure let alone as a violation of the rights of humanity, as the prosecution holds.
It may also be stressed that by virtue of this order in the decree dated 22 December 1941, no arbitrary application could take place, since General BADER, as territorial commander, in his order dated 20 December 1941 - expressly reserved for himself the right to inflict reprisal measures. This insured that the decision on the reprisal measures to be carried out rested in one hand, that is, with the person of the territorial commander competent for the ordering of reprisal measures, and that the arbitrary handling of reprisal measures by subordinate offices and troops was out of the question. The order in the decree by the Wehrmacht Commander South-East dated 6 February 1942, according to which the troops in cases of reprisal had to report the carried out or intended counter-orreprisal measures also, has to be understood in the same light. As General KUNTZE clearly expressed in the witness stand, this was to enable the commander alone competent for the ordering of reprisals not only to examine the conditions in each individual case, but above all to maintain a strict control.
In his efforts to mitigate the reprisal measures General KUNTZE furthermore made representations to the OKW to convince the supreme leadership of the Wehrmacht of the inexpediency - in the interest of the pacification of the country - of carrying out inflexibly the measures ordered by the OKW and in order to effect an alteration of the order of 16 September 1941. Although the OKW in its order dated 1 February 1942 had described in unusually strong terms the Wehrmacht Commander SouthEast as too mild and the measures taken in Serbia concerning the treatment of the rebels as inadequate, General KUNTZE even took it upon himself personally to try and make the OKW accept his plans for the pacification of the South-East.
As is shown by the witness testimonies of the defendants KUNTZE and FOERTSCH as well as by the defense exhibits KUNTZE 33, 34 and 35, General KUNTZE's proposals were, however, turned down by the OKW. Although after the failure of his representations at the OKW General KUNTZE knew that his behavior not only was in direct opposition to the opinion of the OKW, but beyond that was bound to strengthen the OKW in its negative attitude towards him, General KUNTZE did not give up his efforts to mitigate matters. From then on his efforts were directed even more than before to mitigate the implementation of the reprisal measures on his own accord. On the other hand General KUNTZE in these efforts to mitigate the measures had to take into account the mentality of the supreme leadership of the Wehrmacht. Therefore he had to give the OKW the impression that the measures ordered by it were being carried out accordingly. Thus on General KUNTZE's initiative, reprisal measures were reported in vague and ambiguous terms. Reprisal measures were reported as ordered, which in reality were not carried out.
And I omit the next sentence.
Furthermore reprisal measures were reported as ordered or as intended or as being in progress and Testimony FOERTSCH which according to the documents submitted either were not carried out at all or not nearly to the full extent.
Furthermore, the WB South-East reported reprisal measures to the OKW although these measures, an the 10-day-reports of the Commanding General in Serbia to the Wehrmacht Commander South-East of the same period show, were not carried out. I refer to the following list for the time 16 February to 5 August 1942 -- and then on page 36 at the top --I will not read these details in order to save time and will continue at the bottom of the page.
This difference between the 10 daily reports of the Acting Commander-in-Chief in Serbia to the Wehrmacht Commander South-East and the reports to the OKW, which can only be explained by the fact that the Wehrmacht Commander South-East, in reporting to the OKW, referred to the shootings of captured rebels after drumhead court martial as reprisal measures, is an especially striking proof of the smoke screen tactics in dealing with the OKW.
The assertion of the prosecution authority that the orders issued before or during the period when General KUNTZE was in command had led to arbitrary infliction of reprisal measures has been refuted by the evidence. As a result of the evidence it must be restated and stressed emphatically that while he was in command General KUNTZE never once ordered reprisal measures to be carried out on his own authority. Furthermore the prosecution authority was unable to prove that during General KUNTZE's time of office even one reprisal measure was carried out with the application of the maximum reprisal ratio of 1:100, as ordered by the OKW. Orders however which, although they deal with the application of a certain reprisal ration, have not been carried out according to documentary evidence, cannot support a charge.
Nor has the reduced reprisal ratio ever been ordered arbitrarily. According to the documents presented by the prosecution this reduced reprisal ratio was applied only once by General BADER during General KUNTZE's period of command. It concerns the shooting of 150 Communists for the murders of 3 ethnic Germans in Gross-Kokinda as reported in the daily report dated 10 January 1942 - by the Acting commanding General in Serbia to the WB South-East. According to document exh. 168 these ethnic Germans were field-guards, that is, officials, while the shot Communists, according to the daily report by the acting commanding General in Serbia to the WB South-East dated 6 January 1942 to 5 - Document exhibit 169, were a Communist robber band. This measure by the acting commanding General in Serbia against this robber band was a military necessity for the protection of the officials assigned to maintain law and order.
This is also clearly proved by the fact that after the implementation of this harsh but justified measure the situation in the Banat calmed down.
The further assertion of the prosecution that General KUNTZE by his order dated 19 March 1942 - arbitrarily raised this ratio, which General BADER had lowered at General KUNTZE's own suggestion, lacks all basis of fact.
This order dated 19 March 1942 was a military necessity in view of the imminent outbreak of another rebellion in the spring of 1942.
And then I skip the rest of this paragraph.
This order, however, was also influenced by the severe instructions in the OKW order of 1 February 1942 - Exhibit 529 - which General KUNTZE had disregarded until then, but had to adopt, after the failure of his representations to the OKW. In view of the attitude of the OKW to the defendant KUNTZE and in view of the control now to be expected, it was impossible to ignore this OKW order any longer.
This order is divided into two parts:
1. the general or skeleton order, which does not contain any statements in regard to reprisal quotas, 2. the directives annexed to the skeleton order, in which a reprisal quota is mentioned but by no means ordered.
These directives do not contain any new regulations but are a summary of the directives by the OKH for the combatting of partisans dated 25 October 1941. This is irrefutably shown by subsection 3 of the so-called "skeleton order", which expressly refers to the enclosure as a summary of these directives by the OKH already issued to the troops at an earlier date. These regulations of the OKH were re-issued as the defendant KUNTZE has stated in the witness stand as a reminder, which was necessary especially in view of the frequent changes of personnel in the command and the troop itself, and in view of the expected outbreak of another and more violent rebellion in the Yugoslav area, especially in Serbia. The correctness of this statement is proved by the fact that the order was limited to this area and was not issued to the commanders in Greece and the commandant of Crete.
On the other hand, these directives were more lenient by comparison with the regulations in the so-called skeleton order, which represented a literal repetition of expressions in the OKW order of 1 February 1942 - exh. They were at the same time to tone down the strong terms taken from the OKW order of 1 February 1942.
However, "directives" are not orders, but merely pointers and guides which do not entail strict adherence, as does an order. The various references contained in those directives should be regarded in this light.
The reference that "all means likely to achieve success are to be employed" did not give the troops unlimited power to apply arbitrarily any means promising success. What was really meant was the adoption of measures justifiable from the military point of view, as the defendant KUNTZE emphasized in the witness stand. This is also evident from subsection 3 of these directives themselves, which enjoins strict discipline on the troops and threatens severe punishment for excesses and lootings.
The reference in the directives that rebels and the Serbian population may be used, wherever possible, for clearing jobs in case of suspected danger from mines, is both by letter and spirit, just an authorization to do so.
And then I omit the next paragraph which deals with the clearing of mines and continue with the next paragraph at the bottom:
If it had been intended to have the mines themselves removed by captured rebels or the population, this could have been achieved much more simply by suggesting the possibility of using "danger hostages" in cases of mine danger, who might have been forced to walk first over the suspected mine-fields, a measure which General KUNTZE sharply repudiated in the witness stand.
Above all, however, the references to ordering reprisal measures contained in subsection 6 of these directives do not constitute an order. It is expressly stressed in subsection 6 that reprisal measures of a general nature might be advisable, should it be impossible to capture the persons involved somehow or other in the rebellion or to apprehend them. This therefore leaves a wide scope to the judgment of the territorial commander responsible for ordering reprisal measures on his own authority.
The above-mentioned reprisal ratio of 1:100 and 1:50 respectively must be regarded from this point of view, the more so as the word "for instance to a yet higher degree takes the edge off this reference."
Had General KUNTZE intended to raise the reprisal quota, as the prosecution contends, he would not have chosen this wording, but would have clearly ordered that, in view of the numerous reports concerning the possible outbreak of a rebellion, the reprisal quota would from now on be raised again to 1:100 for each soldier killed. But it is the very wording with its limitations and qualifications which clearly refutes the contention of the prosecution to the effect that the reduced reprisal quota had been raised again by an order issued on his initiative.
Since the directives in their entirety, as already mentioned, represent only a summary of previously issued directives of the OKH and, consequently, contain nothing now, this reference to the reprisal ratio, too, can be only a repetition of a provision laid down in these directives. It would be inconsistent and contradictory indeed, if after having used his influence with General BADER to ensure a reduction of the reprisal ration, General KUNTZE had reverted on his own initiative to this maximum reprisal ratio, as ordered by OKH order of 16 September 1941, unless this reprisal ratio, though with the afore-mentioned qualifications had been comprised in the directives of the OKH as well.
That the reprisal ratio laid down in the directives of 19 March 1942 of 1:100 did not represent an order is proven, above all, by the fact that no command agency construed this reference as an order.
This is quite obvious from the order of the Commander-in-Chief in Serbia of 25 March 1942 - which was based on the order of 19 March 1942 and does not mention the reprisal ratio at all. It is proven, furthermore, by the order of the Commanding General of 714th Infantry Division of 30 March 1942 - - - And then I start with the next paragraph: - -
That the reference to a reprisal ratio of 1:100 in the order of 19 March 1942 does not represent an order is proven most conclusively and irrefutably by the fact that this high reprisal ratio was not applied in a single case, not even after the issuance of the order of 19 March 1942, and that, on the contrary, as shown by documentary evidence, reprisals did not only decrease considerably after March 1942, but came to an end altogether, there being no longer any need for them, because the imminent uprising never took place and the population in general kept quite.
And then I continue with the next paragraph:
Summing up, I wish to restate:
Having regard to the imminent Spring uprising the order of 19 March 1942 was a military necessity. It did not contain anything new, but included in the so-called skeleton order the directives of the OKW order of 1 February 1942 and, in an enclosure, a summary of the OKH directives of 25 October 1941, for the combatting of partisans, which had already been issued to the troops. These directives of 19 March 1942 which, incidentally, were neither signed nor initialed, were no orders, but only "ad libitum" instructions. Consequently, the reprisal ratio referred to in the directives, is no order, but only a guidance, not obligatory and giving a wide scope, and even more restricted by the frequent use of such words as "for instance" and "may". The main point is that this directive never took effect. The afore-mentioned reprisal ratio has never been supplied, nor have reprisals increased after issuance of this order; on the contrary, they decreased substantially. In the summer of 1942, there were no reprisals at all.
This fact at the same time corroborates the principle derived from experience that frequently the threat of punitive measures will suffice to achieve a desired effect without the measures themselves having to be resorted to. The obvious conclusion is that the order of 19 March 1942 became known to the insurgents through their excellent intelligence service, and that for this very reason D. MIHAILOVITCH is the summer of 1942 imposed restrictions on his bands in regard to raids and acts of sabotage.
Before General KUNTZE took command, it was intended that in conformity with the order of Field Marshal LIST of 4 October 1941 - "suspects" that is, active supporters of bands, should be earmarked for reprisals. BOEHME's order of 10 October 1941 -- ordering the retaliatory shooting of "hostages" or "prisoners" had created some confusion as to what persons could be subjected to retaliatory measures. As a result, the troops confused these terms, and used in their reports the term "hostages" also for "prisoners" who were selected for reprisals. This confusion caused General BADER, at the suggestion of the defendant KUNTZE, to give a clear definition of the distinction between hostages held in reprisal and prisoners held for atonement in his order of 20 December 1941 . This order only mentions prisoners selected for atonement who are liable to retaliatory measures, but makes no reference to hostages; and goes on to state explicitly that only persons who, after scrutiny, were singled out in atonement for German lives because of their behavior and their attitude, and furthermore, insurgents taken prisoners during a lull in fighting and sentenced by a drumhead court-martial should be subjected to reprisals. This directive is also laid down in the orders of the 714th Infantry Division of 15 February 1942 - of the General Plenipotentiary in Serbia of 25 March 1942 - and the 714th I.D. of 30 March 1942. In addition, the latter two orders contain the explicit directive in regard to the treatment of suspects that only persons found guilty were liable to reprisals as prisoners held for atonement, while guiltless persons were to be released.
These orders furnish proof that the area commander and holder of the executive power in Serbia realized the seriousness of his responsibility for reprisals and, therefore, not only limited them to the absolutely necessary extent, but moreover shrank from shedding innocent blood even if the reprisals were military necessities, and, consequently, inflicted them only on persons who, having taken part in the insurrection, had been found guilty. In further evidence of the high sense of responsibility of the area commander in Serbia, reference is made to BADER's order of 20 December 1941 - according to which BADER reserved the imposition of reprisals to himself so that these could not be carried out unless on his written or teletyped order. How scrupulous this area commander was in regard to reprisals is also shown by his order of 21 June 1942 - according to which BADER subsequently even reserved the order for taking hostages to himself.
While the defendant KUNTZE held authority of command, only guilty persons were made to atone with their lives, that is, either captured insurgents or supporters of bands, who by the very nature of their offences were liable to the penalty of death according to the Guerrilla Decree of the OKH of 8 November 1939 and the Manual for General Staff Duty in War.
As already mentioned, the fact that inaccuracies occurred now and again in the reports of the subordinated command agencies and troops in regard to the designations of the persons selected for reprisals, is traceable to BOEHME's order of 10 October 1941 confusing hostages and prisoners. In any case, it can be regarded as proven on the basis of the evidence submitted that, as shown by the wording of the reports and the respective files, no shooting of "hostages proper" took place while the defendant KUNTZE was in command, even if the persons executed by shooting were erroneously referred to as "hostages" in the reports I refer to the following documents:
In Exh. 122, it is stated explicitly that the executed 7 "hostages" had been sentenced. Consequently the executed persons must have been captured insurgents.
The 130 "hostages" shot in reprisal according to Exh. 124 and Exh. 126 were captured insurgents who had been shot during a combing-out operation in the Sabac-Losnica area, as is proven by Exh. 124 and 99, 159 and 164.
And then I will omit the next two paragraphs and continue on page 49.
If, furthermore it is not always obvious from the reports that captured insurgents have been sentenced, this can only be accounted for by the circumstance that it was taken for granted that they were sentenced by a court-martial, and that for this reason no special mention of this fact in the reports was regarded as necessary or required. For the rest, it should be borne in mind that the reports frequently had to be made by radio and that, owing to the heavy demands on the radio service as well as on all other communication services, a short and terse wording of the reports was ordered which implied the leaving out of what must appear to be a matter of course. In any case, as the witness KUNTZE deposed in the witness box, he has, while in command, not come across a single case where the required court-martial proceedings had not been applied.
As the defendant Kuntze has further testified, in order to examine the procedure of regimental court martials, he had the highest ranking military Judge investigate all offices and units under his command, who, as disclosed by the testimony by General Foertsch, had not been able to ascertain any abuses of lawful regulations.
In Greece, only such persons were picked for reprisals who had committed offenses against the occupying power, and had thus, by virtue of their acts, forfeited their lives, and who had been courtmartialled prior to their punishment. I omit the rest of the paragraph.
If the Commanders of Southern Greece and Saloniki-Aegeis directed that the commitment of acts of sabotage against railways and motorvehicles of the Wehrmacht were to be avenged by the taking of hostages lives, then this measure was based on the fact that these acts of sabotage instigated by England, were calculated not only to harm the German and Italian Armies, but the Greek population as well, whose food supply was dependent mainly upon the means and maintenance of lines of communications. That this was not the opinion of the Commanders alone, is clearly evident by the warning to the population issued jointly with the Italian 2nd Army and also by taking reprisals in conjunction with the Italians, after the warnings had failed to produce the required effect. The same applies to the acts of sabotage committed on the island of Crete at the landing field of Iraklion, where the effects did not fail to register.
I skip the rest of this page and continue on page 52 at the top.
The Prosecution asserts in its opening statement that during the time of office of General Kuntze in Serbia, as a whole, no change was to be observed with regard to the arbitrary use of reprisals, that, on the contrary, the number of reprisals had greatly increased. As it is, however, the Prosecution was unable to prove its assertion: In spite of this fact, I deem it absolutely indispensable to cite evidence to the contrary from the documents of the Prosecution itself and to show, how Reprisals became fewer and fewer in Serbia during the time of office of General Kuntze.
Even from Exhibit 146 VI 31, 42, according to which the 342nd Infantry Division with the date 30 October 1941 (with an appendix covering the period until 15 November 1941) for the period from 31 October - 15 November 1941 still had 3398/ and under the date of 18 November 1941 for the period from 21 September - 15 November 1941, 5960 cases reported for which retribution had not been sought, as well as from a further report of that same division and from a file notation dated 20 December 1941, according to which 20174 reprisals should have been made, it is evident that the order of the fully empowered Plenipotentiary Commander of Serbia, dated 10 October 1941, was not executed by far. In the report of the fully empowered Plenipotentiary Commander of Serbia, dated 13 February 1942 the calculated number of cases for reprisals was given as 20149, covering the period from 1 September 1941 - 1 2 February 1942.
They also cover therefore practically the two-months period prior to the taking of office of the defendant Kuntze. But it is just during this period that we find the high numbers of reprisals taken in Belgrade, Kraljevo and Kragujevac, which numbered more than 19,000. A clear picture, showing the number of reprisals actually carried out in Serbia, during the time of office of the defendant Kuntze in the area of command of the Plenipotentiary Commanding General of Serbia can be obtained from the reports on this subject, directed to Wehrmacht Commander South East and the latter's report to OKW.
From these reports, covering the period from 25 October - 12 February 1942, the following can be ascertained.
Then I skip the statements contained in the daily reports about the numbers of the reprisals taken and the numbers of the exhibits. These are on page 54 and on page 55 at the top, and I ask that judicial notice be taken of these. The total figures are 2,285 shot after summary court-martial and of these in reprisal 665. I stress that in the reports mentioned here, the reprisal measures are always set down separately.
Therefore, if the reprisals mentioned in the report dated 13.2.42, totaling 20149, only 665 occurred in the period from 27.10 to 12.2.42, and by far the larger part, i.e. 19484 in the period from 1.9.41 - 27.10.41, that is, before General Kuntze took over command.
This juxtaposition is an unequivocal proof that there is no question of any increase of reprisals actually carried out during the period of General Kuntze's command up to the 12.2.42.
Also in the following period and until the termination of General Kuntze's command a strong decrease in executions can be ascertained and not an increase as alleged by the prosecution, as will be seen from the following list, which is based either on the 10-day reports of the Plenipotentiary Commanding General in Serbia to Wehrmacht Commander South-East, or on the reports from Wehrmacht Commander Southeast to OKW, so far as these are not in the documents offered, or on the activity reports of Wehrmacht Commander Southeast to the OKW.
Then I skip this list from the 16th of February to the 5th of August, 1942, which contains the numbers and also the exhibit numbers. All the insurgents shot are counted as reprisal measures. Therefore, the figures read "204" and "204".
The above 204 reprisals carried out in the period from 16.2 - 5.8. 42 in the area of the Military Commander Serbia can certainly not be called exceptionally high.
If the 665 reprisals of the period from 27.10.41 to 15.2.42 are added to the 204 reprisals of the period from 16.2 - 5.8.42, one arrives at a total figure of 869 reprisals carried out during the whole of General Kuntze's period of command. This report could be established only after the Washington Documents had come to hand and after defendant Kuntze's interrogation.
We will skip the rest of that page and continue on page 58 at the top.
That this total of reprisals, carried through during the time of office of defendant Kuntze by the regional commander in Serbia, can by no means be considered as disproportionately high, is finally proved by its comparison with the losses by the German troops and their Allies during General Kuntze's time of office. As our own losses and those of the Allies are not listed in the documents during the period of 25 October - 25 November 1941, a survey could only be made of those incurred during the period from 26 November 1941 until 5 August 1942. According to the reports for this period, which have already been used as basis for the reckoning of the reprisals and hence need not be mentioned again, the following facts result:
killed: wounded: missing:
total 2179 3588 2400 If the total losses only in killed, amounting to 2179, are compared with the reprisals carried out during the time of office of defendant Kuntze, amounting to a total of 869, the proportion of 1:0.4 results between losses and reprisals.
But if the losses in wounded are reckoned well - which latter also had to be retaliated - then the proportion of losses to reprisals is only 1:-,2. Therefore, there can be no question of an immoderately high proportion during the time of office of defendant Kuntze, as has been charged by the Prosecution. Furthermore, it has to be considered in this connection that in the reported number of reprisals there are partly included also the apprehended perpetrators, that fighting losses were probably no longer retaliated from the beginning of 1942, presumably even before then no longer in all cases, and that the numerous acts of sabotage, which might have been followed by reprisals in human lives, have not been considered at all.
I omit the next paragraph and continue on page 60 at the top.
In conclusion I state:
Neither the orders for reprisals issued during the time of office of defendant Kuntze, nor the execution of these orders as far as it has become known to defendant Kuntze, justify the charges preferred against him by the Prosecution. Hence there can be no question of a crime in the sense of this count of the indictment.
Then follow statements about the treatment of captured insurgents. I omit page 60 and page 61 and continue on page 62 at the top.
According to the decree concerning guerrillas of the OKH of 4 November 1941 which formed the basis for the treatment of captured insurgents the latter were to be shot in combat and in flight, captured rebels were - according to martial law, to be summarily executed if they were guilty. The American Rules of Land Warfare also express themselves clearly on this point, that rebels and aiders and abettors to rebels must be punished by death. Prior to the assumption of office of General Kuntze, allowances had been made by those issuing orders, for this legal status. It was therefore in agreement with the regulations governing the treatment of insurgents, as set forth by the German and International Law and was therefore legal as far as the Defendant Kuntze was concerned.
Nevertheless, General Kuntze left nothing undone, as the evidence has shown, to bring about ameliorations also with regard to the methods of treatment of captured insurgents.
Thus General Kuntze never objected to the large number of captured rebels, although he know that this was in contradiction to the views of Hitler. Over and above that, General Kuntze also took pains to convince the OKW, in March 1942, to change its attitude toward the prisoner problem and this in spite of the sharp reprimand in the OKW order of 1 February 1942. These efforts, however, did not succeed and contributed substantially to the strengthening of the 0KW's antagonistic attitude towards the Defendant Kuntze.
Then I omit the next paragraph and continue with the following one:
If then in the order of the Defendant Kuntze, dated 19 March 1942 it was first of all decreed that captured rebels be hanged or shot as a matter of principle, then this directive was merely a repetition of a stipulation of the previously cited decree concerning guerrillas of the OKH and, moreover, merely a truthful interpretation of the relevant regulation of the harsh OKW Decree of 1 February 1942.
This order had been withheld by General Kuntze until that moment, and this fact must again be emphasized but after his representations to the OKW failed to meet with success and in view of the new revolt expected in the spring of 1942, he had to pass the order on. However, already in the directives which were appended to the Decree of 19 March 1942 he was limited to insurgents captured with arms in hand, aiders and abettors of guerrilla bands, and former insurgents. But even this directive did not take effect in this form. For already through a teletype of 23 March 1942 on the basis of a directive transmitted by a Reich Office and received by the Commander-in-Chief, Serbia, through special channels, ordering that captured insurgents be brought to territories occupied by Germany for the purpose of work this directive was changed, in that rebels not captured in combat, thus also those surrendering and those erstwhile active aiders and abettors of guerrilla bands, were not to be shot but were to be used for work. This directive governing the treatment of insurgents not captured in battle and of the former, active guerrilla band aiders and abettors, which General Kuntze had suggested to the OKW in the course of his discussion with them, represents a considerable amelioration. For also this category of insurgents should have been condemned to death according to the franc-tireur Decree and they now escaped this fate by being used as workers.
COURT NO. V, CASE NO. VII.
This decisive change in the treatment of insurgents not captured in battle, those surrendering and those under suspicion, is also clearly expressed in the Decree Bader's of 25 March 1942 and in the order of the 714th Division of 30 March 1942.
Neither has the evidence shown, as the Prosecution asserts that the carrying out of the orders issued has led to an arbitrary shooting of insurgents. Alone the large number of prisoners during the time of office of General Kuntze as evidenced by the documents submitted by the Prosecution, above all, however, the fact that the OKW questioned the fact that there was such a large number of prisoners i.e. in the Decree of 1 February 1942 proves the incorrectness of the Prosecution's contention. I refer to the following documents from which the following parts can be gathered namely: That insurgents were taken prisoners, that large numbers of prisoners were brought in, and also that large numbers of prisoners were brought in, and also that large numbers of the insurgents were captured in combat.
Moreover, the additional claim of the Prosecution that captured rebels were shot arbitrarily without being tried or convicted, was not confirmed by the evidence. It has already been pointed out in the treatment of the procedure of the issuing of orders at the time of office of General Kuntze, that the shooting of Partisans taken prisoner with the exception of those shot in action, or their further treatment as reprisal-hostages, or as workers in German occupied territories was subject to a trial by summary court-martial. That summary court-martial procedure, though effected, is not always mentioned in the reports, may be attributed to the fact that, as has already been demonstrated with regard to the treatment of the reprisal-hostages, the holding of a special court had been decreed, is goes without saying that the instructions were complied with.
The omissions of a corresponding note in part of the reports may therefore not be interpreted as evidence to the effect that summary court-martial proceedings had not been instituted at all.
I refer to the following documents insofar as summary court-martial procedure is expressly mentioned in them.
Then follows a list of the exhibits. I now continue on page 67:
Reference is made especially to Exhibit Kuntze 24 II 37, according to which even the auxiliary field police into which the Cetniks of Kosta Pecanac had been absorbed, had to turn over the insurgents captured by them to German courts. In any event as ha had testified in the witnessstand the Defendant Kuntze never was aware, during his tenure of office, of any case of a captured insurgent being shot outside of fighting engagements and without a courtmartial procedure. Moreover, repeated investigation as to the procedure of drumhead summary court-martial made by the Chief Military Judge of Wehrmacht Commander Southeast upon Kuntze's initiative in subordinate offices and units, did not succeed in establishing violations of these regulations.
If the Prosecution claims, that the captured insurgents were not given "quarters" as a matter of principle, then the incorrectness of this claim is already evident from the afore-going presentations, particularly from the fact that there were large numbers of prisoners, from the OKW's objection to this, and from the orders issued during the tenure of office of Defendant Kuntze.
But also the fact that the reports repeatedly mention persons surrendering, is unmistakable proof that there was no such thing as a "refusal to give quarter" as a matter of principle.
In the order of 6 February 1942, the phrase "persons who roam about the battle field and do not stay at home are, in most cases, to be considered participants in the battle and will be shot" did not constitute, contrary to the claim made by the prosecution in its opening speech, an instruction to troops "to consider all persons wandering about the battle field as combatants and to shoot them". The phrase of the order "in most cases are to be considered participants in the battle" proves already that an examination of every individual case, i.e. arraignment before a court martial of these persons were required. This is unequivocally demonstrated by the order of the 714th Infantry Division of 15 February 1942 issued on the basis of the order of 6 February 1942. In subsection 3 of this order it is expressly stressed that such persons were to be arrested and examined and according to the result of the interrogation were either to be released or to be transferred as prisoners to the competent Sub-Area Administrative Headquarters for reprisal measures.
In view of the renewed threatening insurrection in the spring of 1942 and the malicious warfare of the insurgents, the order of 6 February 1942 was also, particularly because of the experiences made in the summer of 1941, a military expedient, as is proved by the wording of the order itself.
If the prosecution believes to have found support for their contentions by establishing the fact that varying terms were employed to describe the losses of the enemy, such as dead for fallen in battle, shot for killed after battle and vice versa and furthermore varying terms for prisoners, such as provisionally seized, arrested or provisionally arrested, still captured or seized, then it has to be pointed out that this terminology is just as unsystematic as is the varying description of persons, selected for reprisal measures, such as "hostages" or "prisoners". The varying use of these descriptions constitutes only a inexactitude of style employed in reports.