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.
In addition, these varying terms were used intentionally in order to conceal from the OKW the actual events, particularly the actual number of prisoners taken. The defendant saw himself obliged to take such action after he had tried in vain as already pointed out, to get the OKW to make basic and sweeping changes in the treatment of insurgents.
The other contention by the prosecution that during the period of office of the defendant Kuntze, relatives of the insurgents were forced to give information about them and that they were exposed to duress and committed to concentration camps has not been confirmed by the evidence submitted. Neither had the defendant Kuntze issued such orders, nor could it be proved that he knew of any such case in which relatives of insurgents had been exposed to duress.
Then I omit the next sentences and continue at the bottom of page 70:
Summarizing I conclude:
Orders, issued prior to defendant Kuntze's succesion to office, as well as orders issued during General Kuntze's tenure of office, pertaining to the treatment of captured insurgents, were issued in accordance with the rules and regulations of German and international law pertaining to the treatment of insurgents.
In addition, the defendant Kuntze did not issue these orders on his own initiative but only in compliance with binding instructions from the OKW and OKH, and because they were a military expedient.
The orders issued by subordinate offices and units were also kept as far as General Kuntze got to know of them, within the framework of the instructions issued by the OKW.
One cannot speak of an arbitrary implementation of the orders issued. This is proved by the large number of prisoners taken during the whole time General Kuntze was in office, including also the period after the order of 19 March 1942 was issued.
Now follows the section dealing with the treatment of the population:
The above explanations of the procedure of issuing orders, and of its effect in reality, during defendant Kuntze's tenure of office, show that the contention of the prosecution that there existed a plan of terrorizing and intimidation with the aim of decimating the population, is without foundation. I believe to have proved, that the character of the orders issued during the time the defendant Kuntze was in office, was determined to a large degree, by the humane attitude taken by General Kuntze towards the population of the occupied Southeast, and that moreover, the execution of reprisal measures was solely the result of military expedience.
Had the defendant Kuntze intended to terrorize or even decimate the population of the Southeast, then his whole attitude towards the question of reprisals and the treatment of insurgents, particularly his attempts to have the measures offered by the OKW toned down, would have been absolutely incomprehensible, and particularly his conflict with the OKW, which had effects, detrimental to his person would have been absurd.
Just this behavior of the defendant Kuntze should prove unequivocally that General Kuntze never had the intention to terrorize or decimate the population. More than that, I have also proved that the defendant Kuntze had the welfare of the population in mind.
May I recall defense exhibit Kuntze 28 and exhibit Kuntze 27 on the establishment of the so-called "cordon sanitaire" on the river Drina, offering the Pravoslav refuges from Croatia who were streaming across the river Drina, medical care, food and lodging.
Then I would draw judicial attention to the following statements, on page 73 which also deal with the measures taken in the interest of the Greek population and I will continue on page 74 at the top.
Also the allegation of the Prosecution that fights between the individual ethnic entities of the Balkan, had been stirred up by the German Occupation Power in pursuance of their policy of decimation and that for the carrying out of this policy, they had utilized these troubles is merely a mistaking and misrepresentation of both the facts and the situation.
Then I refer to the following statements which deal with General Kuntze's attitude towards the atrocities and also the fact that he did not do as the Italians did and sent the Cetniks against the communists.
And then I omit page 75 and continue on 76:
Destruction of homesteads That the burning of homesteads is, according to international law, admissible by way of reprisal, if it is considered a military necessity, has already been discussed in detail, in the plea and in the statement of the defense for the defendant List.
Then I continue with the next paragraph:
If, in the order issued by the defendant Kuntze, of 19 March 1942, the destroying of towns and villages as means of reprisals are mentioned, -- according to lines of policy as under section 6, -- one must, in this connection again lay emphasis on the fact that these lines of policy did not contain anything new, but were merely a repetition of the previously issued regulations of the OKH, well known to the troops.
This reference in the lines of policy as laid down, is therefore not a measure which the defendant Kuntze initiated, quite apart from the fact that these lines of policy were not binding commands but were merely meant as direct tions to the troops. For the rest, I would like to mention that this reference in the lines of policy corresponds also to the agreements as laid down in the Susak record on 3 March 1942 which through the approval of the OKW, the Commando Supreme and the Croatian Government, became binding.
I omit the rest of this paragraph.
During the period of office of the defendant Kuntze, only very few measures of destructions-in-part were carried out as means of reprisal in Serbia, which however, do not prove that the defendant Kuntze is to blame.
The documentary material of the prosecution shows only four incidents during the period of General Kuntze's command on which I am now pleading in the following, based on the text of the reports.
And then I will not read the details about these individual incidents and continue on page 79 at the bottom.
All the other incidents mentioned in the indictment happened in a period either before or after the defendant Kuntze took over command and can therefore not be charged against him.
In Greece no village, not one single house or any other building have been destroyed in the course of reprisals during the period of the defendant Kuntze's command.
I will omit the rest of this paragraph. Then follows the conclusion:
Summing up I declare with reference to this point of the indictment:
Neither the orders issued not the execution of these orders given during the period of the defendant Kuntze's command-
THE PRESIDENT: It will be necessary for us to take our morning recess at this time in order to give the sound track mechanics a chance to change the film.
We will take a short recess at this time.
(A recess was taken.)
(The Tribunal reconvened at 1045 hours, 5 February 1948)
THE MARSHAL: The Court is again in session.
THE PRESIDENT: You may proceed.
DR. MENZEL: I would like to proceed. I stopped before the recess on page 80 on the bottom where it says: "Summing up I declare with reference to this point of the indictment." Neither the orders issued nor the execution of these orders given during the period of the defendant Kuntze's command have proved a responsibility of the defendant Kuntze in the meaning of the charges made by the prosecution against the defendant.
I am turning to page 81 where it says the "Destruction of the Economy". I shall omit this paragraph. It is well known that it was not the destruction of economy that was planned but the reconstruction that was planned. Now we come to page 82, to the chapter of the treatment cf captive members of Allied Armies.
Treatment of captive members of Allied Armies The Prosecution has not been able to prove that defendant Kuntze or any of his subordinate commanders during his time of office in the Southeast issued any order stating that captive soldiers of Allied Forces were not to be treated as prisoners-of-war.
Neither did defendant Kuntze during his time of office gain knowledge of any case - nor did the Prosecution prove any such case - that captive members of the Allied Forces were not treated according to the rulings of International law by the German authorities and troops under his charge. The shooting of three Britons mentioned in the activity report of the Wehrmacht Commander Southeast of 31 August 1942 on the losses in the total area during the period of 24 July - 3 August 1942, is in the first place contradicted by the note of 4 August 1942 in the war diary of the Commanding General and Military Commander in Serbia in August 1942, according to which only two of the three captive Britons were shot. Furthermore, it has been carried out by Bulgarians as is proved by the activity report No. 2 of the 717th.
Infantry Division and the note of 4 August 1942 in Exh. von Geitner 68 IV 8. But the Bulgarian troops were only tactically subordinated to the General Plenipotentiary in Serbia, but not in a disciplinary and juridical respect. Therefore the measure carried out by the Bulgarians cannot constitute the basis for any charge against defendant Kuntze, all the more because these Britons were also gang members. Also the shooting of a British parachutist by an anti-Communist, mentioned in Doc. Exh. 227 IX 51, 36, does not incriminate defendant Kuntze. For, according to the wording of the report and according to the place of this action, which latter has been omitted by the Prosecution when reading the document, this event took place in the Italian Occupied Territory, i.e. in the area of the Italian AOK 2. Besides, it also emerges even from the documents submitted by the Prosecution that, during the time of office of General Kuntze, members of Allied Forces were always considered as prisoners-of-war.
I shall now omit the opinion in detail which is on page 84 and 85 and shall again begin on page 86 with the chapter "The 'KommissarBefehl'". I shall have to read in detail my comments on that point since the "Kommissar Befehl" was a great topic of the Prosecution.
The"Kommissar Befehl", in the form in which it was presented as Exhibit 14 I 34, 49 and of which the defendant Kuntze came to know only in Nuernberg, applied, as evident from its contents and in particular from the code-word "Barbarossa", exclusively to the Eastern theater of war and not to the South-East. Those Commissars mentioned in the documents submitted by the Prosecution and applicable only to the South-East, were rebels and were to be treated as such. Therefore the shooting of Commissars mentioned in the Documents Exhibit 590 and 591, which were submitted to the defendant Kuntze during his cross-examination do not prove the responsibility of the defendant Kuntze. Besides, the 718th Division in whose area - according to Document Exhibit 590 -- a partisan Commissar was arrested and shot, was not subordinate to the Military Commander South-East during the time in question but to the Italian AOK 2. The shooting of a Commissar mentioned in Document Exhibit 591 occurred in the course of military operations as is evident by the wording of the entry.
As far as the charge of the Prosecution is concerned blaming the defendant Kuntze, due to his assignment to the East as Commanding General of the XXXXII A.K., with responsibility for the Kommissar Order then in accordance with the evidence the following must be considered as proven conclusively:
As is evident from Exhibit Kuntze 43 General Strauch (Generaloberst) as General commanding 9th Army, to which the XXXXII A.K. was subordinate at the beginning of the Russian campaign, had given an order orally before the beginning of the offensive that captured commissars were not to be shot but were to be treated as prisoners of war. This order was passed on by General Kuntze to his subordinate divisional commanders.
When later on the XXXXII A.K. was subordinated to the 18th Army at about the middle of July 1911, the XXXXII A.K. did not receive the Kommissar Befehl from the 18th Army. Consequently the XXXXII A.K. too could not pass on this order to the divisions, which had been put under its control by the 18th Army.
Not only during the time of its subordination to the 9th Army but also during the time while it was subordinated to the 18th Army, the XXXXII A.K. never learned of any shooting of Commissars in the corps area.
The shootings of commissars in the area of the 217th Infantry Division and the 61st Infantry Division, which are mentioned in the documents Exhibit 592 and 593, and of which General Kuntze learned only after these documents had been submitted to him during his cross-examination, cannot be blamed on him. Exh. Kuntze 65.
The 61st Infantry Division, in the area of which, according to the statement of the Prosecution, with reference to Exhibit 593, Commissars are said to have been shot on 26 September and on 8 October 1941, by units 161a of the motorized military police as is evident by Exhibit Kuntze was subordinated to the XXXXII A.K. around the middle of august, this fact was not denied by the Prosecution either.
I am now turning to the next paragraph page 89 on top.
The witnesses Einbeck and von Woedtke declare in their affidavits, Exh. Kuntze 45 III 32 and Exh. Kuntze 46 III 34, that the subordination of the 61st Division under A.K. XXXXII ended around the 20 September. The Prosecution has tried to disprove those statements by submitted the rebuttal-documents Exh. 665. However, the Prosecution has not been able to do so.
According to the witness Kuntze's statement in the witness-box the A.K. XXXXII was withdrawn after the conquering of the Isles of Moon and Oesel before the action against the Isle of Dagoe had been started and after it had transferred - according to orders - the ensuing preparation for carrying through the action against Dagoe to the 61st Division. After a few days of rest in Riga and Pernau, about Oct. 6.41 A.K. XXXXII was taken by train to Rumania from around the 6 October 1941 on, for further combat-assignment against the Crimea. (Statement Kuntze, Prot. p. 3475 German, 3531 English). This statement of the defendant Kuntze in the witness box which was made earlier in the examination, i.e. before the cross-examination-documents had been submitted to him, corroborates the statements of the witnesses Einbeck and von Woedtke concerning the time of withdrawal of A.K. XXXXII from the 18th Army and also the termination of the actual subordination of the 61st Division under A.K. XXXXII.
The fact that in the war-formation schedule of the OKH on the 8 October 1941, submitted as Exh. 665 by the Prosecution, A.K. XXXXII and with it the 61st Division appears as being still subordinate to the 18th Army is no contradiction of the evidence produced by the defense. For, usually the daily war-formation schedule continued to register an exist ing subordination until transportation was on the move.
The transportation of A.K. XXXXII, however, took several days because besides the A.K. Staff the Corps Signal Battalion and the Corps Supply Units had to be shipped too. The date of the OKH war-formation schedule is therefore no proof of the actual relative subordination between one formation and another at the time specified. It is therefore quite evident from the defendant Kuntze's statement as a witness and from the defense-Exh. Kuntze 45 & 46, that in October and also around the 26 September 1941 A.K. XXXXII was no longer subordinate to the 13th Army, nor was the 61st Division subordinate to A.K. XXXXII.
Furthermore, there is nothing the war diary of the Motorized Military Police Troop 161a submitted as Exh. 593, to prove that it had been actually under the 61st Division at the periods in question. Just as many other units, the Military Police units, too, frequently changed in their position of subordination. The title page of the Military Police Troop 161a's war diary (Exh. 593) contrary to regulations does not disclose this though; and moreover the heading of that document has become illegible by deletions and handwritten notations. Only the word "Division" is legible, but not with certainty the number 61.
Further, this Military Police Troop 161a war diary covers a longer period, i.e. the time between 26 June 1941 up to 31 March 1942, as is evident from the document itself. It does not disclose, however, when during that period the Military Police Troop was subordinate to the 61st Division. The Prosecution has therefore failed to prove that Military Police Troop 161a was actually subordinate to the 61st Division at the crucial times as stated in Exh. 593.
Moreover, the Prosecution has failed to prove that the 61st Division had actually given the order to shoot the Commissars; for, only if such an order had been given by the Division, could the responsibility fall on the Division. The Military Police Troops were subordinate to the Divisions only as far as assignments were concerned, whereas they received their orders and directions in matters pertaining to the police directly from the Military Police Officer of the respective army to which the Military Police troops were subordinated in military matters.