It must be stated preliminarily that the recognition of an enemy as a belligerent power is a political decision quite outside of the scope of authority of a commanding general. The German military and political leadership had established unequivocally that the enemies of the German armed forces in the Balkans and likewise in Croatia were bandits. To whoever was conversant with the conditions prevailing, it was clear that this decision was warranted by the facts.
When analyzing the charge that regular troops were refused recognition as belligerents and that this treatment caused the death of tens of thousands of prisoners of war, the following must be pointed out in the first instance, as far as General v. Leyser is concerned: Although the Tito-partisans (the only enemy involved in Croatia) did in 1943 and 1944 in no way fulfill the four well known criteria of the Hague Rules of Land Warfare -- this will be developed more fully in due course -- General v. Leyser's troops treated captured partisans absolutely according to the rules of the Geneva Convention concerning Prisoners of War. When submitting their charges against General v. Leyser, the prosecution overlooked the fact that all orders to the effect that captured partisans should be executed, had become obsolete long before November 1943. On the contrary, according to the general ruling in the OKW-decree dated 18 August 1943, produced by the prosecution, all band members were from that date to be treated as prisoners of war. This order was strictly adhered to in the area of the XV. A.K. and in the entire area of the 2nd Panzer Army. This follows from numerous prosecution exhibits dealing with captured bandits. It also follows from the depositions of witnesses and from a number of defense exhibits.
Hence, all conclusions drawn by the prosecution from previous orders are automatical. Not a single member of the Tito-partisans was shot by the troops of General v. Leyser only because he belonged to the partisan movement.
I shall take up this point again when discussing the individual prosecution documents.
I shall omit the next pages from the reading and I will continue with page 18 at the top. The pages which are omitted contain various statements concerning the legal position of the Tito bandits and I don't believe it is necessary to read them here. I am continuing with Page 18 at the top:
One other point of view which is decisive for Croatia has been completely disregarded by the Prosecution. It is the fact that the bandits were rebels against their own legal government and that for this reason alone their combat had no legal basis, on the grounds of which it could have been acknowledged by international law.
If, on the other hand, the prosecution has thus not proved that Tito's partisans fulfilled even one condition of the Hague Rules for Land Warfare, the evidence of the defense on the other hand has shown that neither was there a responsible leader in command of all these units, nor did they wear a suitable badge, nor did they carry their arms openly. In my opinion, however, the evidence of the defense was particularly impressive with regard to the fact that partisans in no way observed the rules and customs of warfare. The cruelties of the partisans, which have been proved by the testimonies of witnesses, would alone suffice to fill the time at my disposal. I must therefore only refer to the testimonies of the witness Kobe, the witness Persch, the witness Heidenreich, as also to affidavits submitted to me. People who are guilty of such cruelties, not in exceptional cases but constantly, cannot be regarded as as regular combat forces.
I am of the opinion that the defense has fully proved that they were no regular combat forces in the sense laid down by the Hague Rules of Land Warfare, not even those partisans who had been formed into more or less loose units. But this only describes one part of the opponents of the German Wehrmacht in Croatia. With regard to the reprisal measures, theother part has by far greater importance.
The Prosecution tried to give the impression that the opponents of the German Wehrmacht in Croatia only consisted of regular, magnificently led units who wore the best of uniforms and observed the law of warfare in every way.
The Prosecution only mentioned the Tito units. All their statements referred to them. I do not think I exaggerate if I say that nobody would have been happier than the German troops entrusted with the combatting of the partisans, if this assertion of the Prosecution were founded on fact. Unfortunately, the contrary is ture. The majority of all those incidents which led to the combating of the partisans could not be laid at the door of the partisans fighting in units. The counter measures of the German troops were not directed against the large bands, but against the so-called small bands, the house partisans.
I shall now omit nine lines and will continue about the middle of this paragraph.
They stayed at home on their farms, wore their civilian clothes, and did their work. Occasionally they formed small temporary bands in order to carry out individual projects. Thus, or even singly and in twos or threes, they assault small German units, single vehicles or medical aide columns; they blew up railway tracks and mined the roads. It was against these activities which were carried out from ambushes and the perpetrators of which were usually not to be caught, that the German troops and the Croatian authorities had to defend themselves. The German troops did this for their own protection the Croatian authorities in order to carry out their task of maintaining order and peace in the country.
This was the real band fight, and it was fought by Communist parts of the population, that is to say, by civilians. It was against this form of combat alone that the reprisal and retaliation measures were directed. These assaults did not constitute defense measures of the population against an alleged German and Ustascha terror. The contrary was the case. The reprisal measures were carried out in order to counter and to prevent such completely illegal activities of rebellious parts of the population within an independent State.
Once more it must be made clear that these house partisans had no claim whatsoever to be treated according to the rules of warfare.
By their manner of combat they had placed themselves outside of any law. Robbery and looting were among their daily activities.
I shall omit the rest of this paragraph and I shall continue with the last paragraph on this page, that is, after the quoted portion.
As the witness Annus, to quote one of many examples, has shown, reprisal measures were only envisaged for such cases where assaults, railroad sabotage etc., occurred within the territory directly occupied by the German troops; that is to say, when the perpetrators were most probably to be found among the ranks of the civilian population, living among the German troops. It was only in the case of such incidents, therefore, that reprisal measures were ordered and carried out at all, that is to say, not in the case of combat operations carried out by regular troops, which did not exist in Croatia anyway, and equally not in the case of combat operations carried out by the large bands, and I quote:
"The reprisal measures do not depend on the existing number of troops, but on the behavior of the civilian population."
The Prosecution themselves, by the way, offered evidence for this picture of the conditions by the testimony of their witness Bach-Zelewsky.
I feel I should mention these points in advance before turning to count I.
III. Count I.
Under this count the Prosecution has submitted that all defendants participated in and were responsible for a plan to terrorize the civilian population. They say that the measures carried out for this purpose could not be justified by military necessities, but that the purpose of this plan had been to designate the population of this territory for the benefit of future generations. Furthermore, the Prosecution stated in this connection that hundreds of thousands of civilians had been murdered by the defendants, that the defendants had chased inhabitants of the occupied territories from their homes and places of work and had wantonly hanged and shot them as hostages without trial. A great part of this count is taken up by the statement that inhabitants of the country were executed in a proportion of 50 or 100 for each German soldier killed.
If the Chief Prosecutor in his opening statement expressed the opinion that the evidence in this trial was unequivocal, then it must be said here that the charge which the Prosecution have brought against General v. Leyser in this respect have actually remained an assertion only. The Prosecution have not been able to offer a shadow of evidence for the fact that such a plan for terrorization and extermination ever existed at all. The fact that General v. Leyser participated in such a plan, however, they have not even attempted to prove.
I cannot within the framework of these final deductions discuss once again all the documents which the Prosecution have submitted against my client. All documents have been discussed in the course of the taking of evidence by the defense, and they have been reduced to their real probated value. The interpretation of the Prosecution documents which was submitted by the defense and which is supported by the statements of General v. Leyser and the testimonies of witnesses who were partly examined in person, or gave affidavits, was not shaken by the Prosecutions crossexamination. That, however, means, in my opinion, that the submissions of the defense must be regarded as correct in this respect.
A. To go into detail, it must be stated that the Prosecution have not submitted one single order of General v. Leyser which referred to the arrest of civilians as hostages and, still less, to the execution of hostages in general or in any individual case. They have also not proved that he passed an order issued by a superior authority.
The only order issued during the time of General v. Leyser which concerns reprisal measures and deals with the arrest of hostages in the wellknown order of Army Group F, dated 22 December 1943. However, the principles contained in this order are not, in my opinion, in contradiction to the rules and customs of warfare in any way.
Furthermore, the Prosecution have not been able to submit under this count one single order issued during the time of General v. Leyser, either given or passed on by him, which refers to reprisal quotas.
Beyond this they have not proved in any way that within the area covered by his corps any reprisal quotas were applied. The contrary has been proved by the evidence submitted by the defense. Therefore I need no longer deal with these points during the further course of the trial.
B. Before discussing the individual documents referring to this count I would like to state the following: I have already explained that Croatia was an independent State. I have further explained that the Croatian authorities exclusively were entitled to exercise the rights of sovereignty. The same thing applies to Albania during the period when General v. Leyser commanded the XXI Corps. Therefore, from the very start and as a matter of principle, the ordering of reprisal measures did not come within the sphere of his activities, nor within that of his divisional commanders. This had been clearly laid down by the order of Army Group F, dated 22 December 1943. Under the heading: "Who May Carry Out Reprisal Measures" it says here under No. C:
"In Croatia the representatives of the Government attached to the German commands will be empowered to deal with decisions concerning reprisal measures. The same principles, as in Croatia, are applicable in Albania mutatis mutandis."
This proves that within the area of the XV A.K. in Croatia as well as within the area of the XXI A.K. in Albania, the ordering of reprisal measures was the exclusive right and the task of the Croatian or Albanian Government representatives attached to the German commands. Therefore, within the area under General v. Leyser's command the divisional commanders who in other territories were empowered to make decisions, did not constitute the decisive authority responsible for these measures, but solely the representatives of the governments in question. For this reason alone, no divisional commander, and still less General v. Leyser in his capacity as superior of such a divisional commander, can be made responsible for the carrying out of a reprisal measure, from the moment that this order was issued. Apart from this, a similar rule had existed even before in the Croatian area, it was really self evident in view of the constitutional situation in this territory.
This is proved with absolute certainty by the prosecution Exhibit 373.
I am now omitting the rest of this page and the first paragraph on the next page and I continue with the second paragraph on Page 26.
This point had to be mentioned in advance before reprisal measures could be discussed at all. Because all the things which I will have to say about reprisal measures, in principle and in detail, will only be submitted by way of argument, according to the points of view just explained. I do not think that I will have to say much more about the question of legal admissibility of reprisal measures, or about the admissibility of executions of arrested hostages. I may refer in this respect to the legal brief of the defense counsel for General Rendulic which deals with the question of admissibility of reprisal measures in principle, and, in particular, with the carrying out of reprisal measures within the area covered by the II Pz. Army. During the period covered by the brief, General v. Leyser was directly subordinated to General Rendulic, with the exception of a few months which do not concern us here, when he commanded the XXI Mountain Corps. Therefore, both with regard to time and place, conditions are a hundred percent the same, so that I can take over this presentation in its entirety. Only as a matter of principle I would like to add the following: The Prosecution have said in their brief that the legal position is completely clear and unequivocal. They state for instance that the defense was unjustified in their attempt to mix up the execution of hostages with reprisal measures as such. The Prosecution says:
"The institution of hostages has always been different and separate from reprisal measures."
This same Prosecution said in their opening statement:
"The whole question of hostages is bound up with the question of reprisals."
That means that the same Prosecution express two different legal opinions within the same trial.
There could be no better proof of the difficulty and the legal uncertainty of this legal problem. If the Prosecution is even not sure of the legal position during this trial, as the comparison between those two quotations shows, how will they then be able to assert and prove that the defendants, consciously and intentionally, disregarded principles of international law which were generally recognized? Because they only refer to intentional actions. In this connection, too, I should like to quote the Chief Prosecutor. He says:
"We would not have arrested these defendants, we would not have requested that this court be constituted, and we would not have brought charges against these men, if they were to be accused of mere carelessness or responsibility for occasional or sporadic crimes committed by their troops."
The presentation of the Prosecution in their opening statement and in their legal brief, and the presentation in the legal brief of Dr. Fritsch, show how much the legal opinions of experts differ, and how unclear the Prosecution themselves are on the subject. But nobody could expect military leaders who are no lawyers to have been better legal experts in 1941/44 than the legal scholars of the Prosecution, who have now been working on these legal matters for years.
I am omitting the next two paragraphs and I now turn to Capital "D".
D.1) After this point has been cleared up in principle I can now turn to the documents offered by the prosecution in evidence of the fact that my client was responsible for the execution of hostages within the area covered by the XV and XXI A.K. As regards facts, the evidence is simple. The mass of prosecution documents contain only one solitary case in which troops of the XV A.K. report the execution of hostages during the time of General v. Leyser.
General v. Leyser did not order this execution of hostages. He did not even approve of it before it was carried out; he only heard about it through the report of the Division.
I am now omitting again the rest of this page and the whole of the next page, 29, and I will now continue with Paragraph 2 on Page 30. These pages omitted contain details on the matter of reprisals and I do not believe they are necessary here.
In connection with these incidents I may further refer to the v. Leyser Exhibit 58, submitted by the defense. This provides evidence to show that just within the area covered by the I Cossack Division reprisal measures were only carried out after such measures had been previously announced.
But in accordance with the order of 22 December 1943, the instructions for this reprisal measure of 27 Jan. 1944 were not given by the divisional commander subordinated to General v. Leyser, but by the Croatian representative attached to the division, who was not in any way subordinated to General v. Leyser. For purposes of clarification this must be once more explicitly stated.
The fact that this order, according to which the Croatian Government representative, and not the German troop commander, had to give the instructions for the reprisal measure, was actually obeyed, has been proved in detail by the testimony of the witness Kobe. This witness explained at the hand of another reprisal case that it was the Croatian representative attached to his division who had ordered the reprisal measure carried out there. Furthermore, the witness Annus, the witness Pfafforott, and the witness Linbeck, have testified concerning the activities of the Croatian representatives attached to the corps and the divisions.
A further incident in the course of which hostages were executed as a reprisal measure has even been included by the prosecution in their indictment. Here they submitted, under No. 5:
"On 11 August 1944 troops of the 21, SS Mountain Division Skanderbeg under the authority of command of the Corps hanged 6 hostages at the location of the surprise attack as retaliation for an attack East of Kukes, on which occasion 2 motor cars were set on fire."
The prosecution exhibit on which the prosecution bases this reproach is a daily report of the XXI Mountain Army Corps of 11 August 1944. It is said here where it deals with the SS Division Skanderbeg:
"Slight losses of our own on the occasion of surprise attacks East of Kukes. 2 trucks burned out."
The prosecution, therefore, did not make use of just the decisive points from this prosecution document for the indictment, viz. the facts that the actions in question are surprise raids not attacks and that there occurred losses of our own and civilian losses. The prosecution mentions merely the fact, which is unimportant in this connection, that 2 trucks burned out. The court will draw the right conclusion from the comparison of the original document and the assertion of the prosecution. But General v. Leyser cannot be made responsible even for this occurrence for the most diversified reasons. First the above mentioned order of the Army Group F of 22 December 1944, digit C was valid also for this time and locality. This order ruled that the representatives with the divisions of the State government had to decree the retaliation measures in Albania too. But General v. Leyser had no authority in Albania and no responsibility for employees of the Albanian authority.
In addition to it the following point of view must be considered. The Division Skanderbeg was not subordinated at all to General v. Leyser. This is proved by the affidavit of Marshal von Weichs who declares here that General v. Leyser had no business with the SS Division Skanderbeg and that it was not subordinated to him.
General v. Leyser acted according to this order of Marshal von Weichs. He, therefore, cannot have any responsibility whatsoever for all that took place in the territory of the SS Division Skanderbeg. The prosecution submitted a series of further documents allegedly incriminating General v. Leyser, in order to prove his responsibility for the SS Divisions. Every single one of these documents was reduced to its value as evidence in the questioning of General v. Leyser, and this is the reason why I do not want to discuss them once more, but want only to sum up and state in regard to them that they have no probative value at all held against the, distinct depositions of Marshal von Weichs.
And now here is the third supplementary statement: In answer to this the Prosecution referred to Exhibits 403 and 404 in their closing statement. It interpreted those two documents to the effect that the subordination of the SS Division Skanderbeg under General von Leyser's command falls from them. This Inference, however, is incorrect. In Exhibit -- and I believe that is a typographical error; I believe it should be Exhibit 403 -- in Document 403 of the Prosecution, they referred to a radio message of 4 September 1944 by Major Frank to the Army Corps and they maintain that Major Frank was a member of the SS.
The fact that an SS leader asks permission for such a measure in the Prosecution says proves that the SS Division Skanderbeg was under the command of the 21st A.K. An can be seen from the document as well as from the designation of Major Frank, counsel for the Prosecution is mistaken here. Major Frank was not an SS man but commanding officer of the IInd Gun Battery of Infantry Regiment 522, which is a combat unit. Consequently, the facts do not support the conclusion drawn by the Prosecution.
Apart from that, General von Leyser described in his interrogation in detail what individual events are concerned. Also the Exhibit 404 further quoted by counsel of the Prosecution, equally is not apt to prove his contention. In one of these War Diary entries of 18 September 1944 we read that General von Leyser requested the SS Division Skanderbeg not to carry out a retaliatory execution which was scheduled as a reprisal measure for the two incidents.
In this document a reason is given for his request; whereas a commander in chief would never make a request to a subordinate by giving reasons for it. On the contrary, he would simply give an order. This entry again proves that there was no subordination in this case.
Herewith the incriminating documents are discussed by which the prosecution has tried to prove in its evidence proceedings the destruction of human lives through retaliation measures in the case of my client. They merely presented one execution of a hostage in the territory of the XV Corps and one in the territory of the XXI Corps.
In the rebuttal proceedings they tried to prove by introducing the Exhibit 658 of the prosecution that further retaliation measures against human lives were still carried out in the territory of the XV Corps.
They referred as an evidence to the daily report of the inspection of the Railway Security Detachment Croatia of 4 November 1943 and as a supplement to it to a teletype of 7 November 1944 with closer details regarding the daily report of 4 November 1944 in which the hanging of hostages at the location where the sabotage was committed is reported under digit 10. The sabotage occurred near Novo Gradiska, that means far from the area of the XV Mountain Corps.
When submitting the document the prosecution stated that this document is a daily report of the XV Mountain Corps. Already then I emphasized that it is not the report cf the XV Mountain Corps, but as the document clearly shows, is a daily report of the Inspectorate of the Railroad Security Staff Croatia and copies of a teletype from the same office. The Tribunal may remember that when this document was submitted I already pointed out that until now the prosecution has not asserted, far less proved, that this office was ever subordinated to the XV. Mountain Corps and thus to General v, Leyser. The Tribunal stated in this connection that the document does not show that the Inspectorate of the Railroad Security Staff Croatia was subordinated to the XV Mountain Corps.
On the contrary, this office was subordinated directly to the 2nd Armoured Army.
And now we come to Supplement No. 4: The Prosecution does not recognize this legal position. They claim the defense did not prove that the Inspectorate of the Railway Security Staff in Croatia is not subordinate to the 15th Mountain Division. The exhibits, however, of the defense they contain are weak. I do not have much to say to this objection. If the Prosecution claims that there was a certain relationship of subordination then it is up to the Prosecution to prove that, and it is not the task of defense to rebut a statement which has not been proven.
We go now to Page 34 at the top:
In this connection I may be permitted to refer to the statements I made at that time. This incident near Novo Gradiska cannot incriminate General von Leyser in any way. It occurred far away from the Corps area and involved an office not subordinated to him.
For the time being I have proved that it is true that the first incident which occurred in the area of the XV Mountain Corps was reported by troops of the XV Mountain Corps, but that it was ordered by the Plenipotentiary of the Croatian Government and that it concerned a measure for which the military had to take the responsibility. In case of the XXI Corps it has been proved that the incident occurred in the area of the XXI SS-division Skanderbeg, that in Albania too reprisal measures were ordered by the representatives of the Albanian Government and that furthermore this division Skanderbeg was not directly subordinated to General von Leyser. In connection with the 3rd accusation I have proved that it concerned an incident outside the Corps area, namely the report of the Railroad Security Staff Croatia, and that therefore my client cannot be made responsible for it. This is all the evidence the prosecution has submitted. This is all that could have been submitted to support the assertions of the prosecution, namely, that General von Leyser participated in the annihilation and extermination of the civilian population end that he too was responsible for the death of hundreds of thousands persons.
There could be no greater contradiction between assertion end evidence.
2.) To count one of the indictment the prosecution submitted a number of additional documents. These are reports, mainly submitted by the 373rd division, in which it reports the arrest of hostages as a reprosal measure. As the prosecution has not objected to the arrest of hostages as such, I believe that I can limit my words with regard to this subject. The only thing which can be said in connection with this count is that these measures in Croatia were also ordered by the plenipotentiary of the Croatian Government. In this connection it is also to be pointed out that they were not carried out arbitrarily, but they were the last measures in the territory Croatia which were taken as a warning to prevent additional attacks which were against international law, on protected legal properties, either of the troops or of the Croatian State. Here too the civilian population had previously been warned. It has to also be pointed out here, that only in cases where it had been proven beyond doubt that the civilian population had participated, hostages were arrested, and in addition it has to be pointed out that only these persons who were connected with the deed were arrested as hostages.
In accordance with its usual procedure, the prosecution proved only the actual taking of hostages as such by submitting the reports of the troops.
In general, the actual procedure cannot be reconstructed from the evidence submitted by the prosecution. On the other hand, the defense was in a position to clarify beyond doubt the incidents which are supposed to incriminate General von Leyser. In this connection I hope I do not need to discuss again all pertinent documents. I remind the Tribunal only of the interrogation of General von Leyser in connection with this count.
The next pages have similar examples in them which I do not wish to read.
I am now turning to Page 37 and to the last paragraph on that page:
In recapitulation I can say to count I that the prosecution has not brought any evidence for its assertion that retaliation measures were carried out in the area of General v. Leyser, unless they were based on military necessities. All that was done was necessary, it was caused by the attitude of the bandits and the civilian population, sympathizing with it and it met in any respect the laws and usages of war.
IV. COUNT II.
With this I arrive at count II. The nucleus of this count is the assertion by the prosecution of unjustified destruction and devastation of villages and cities and besides the stripping by plunder of the civiliam population. But it must also be said that about these counts that the material, submitted by the prosecution is insufficient in anyway to prove the charge of guilt brought forward against General v. Leyser. This count too was discussed in detail in the argumentation of the defense. I, therefore, shall limit myself also in this count to recapitulating the most important documents.
THE PRESIDENT: We will take our noon recess at this time.
(A recess was taken until 1330 hours)
COURT NO. V, CASE NO. VII.
AFTERNOON SESSION The Tribunal reconvened at 1330 hours.
THE MARSHAL: The Tribunal is again in session.
DR. TIPP: (Counsel for defendant von Leyser):
One count of this kind is presented against General von Leyser in the indictment. The prosecution asserted the destruction of the 4 villages Dreznica, Pisac, Tuzevic and Voivodersa.
I skip the rest of the page and continue on page 39:
But it is of especial importance that the representatives of the prosecution were unable to prove their assertion in this respect by even a single document. The Court will look in vain in the counts for the names Pisac, Tuzevic and Voivodersa. Neither was a witness of the prosecution heard about it. The prosecution consequently failed completely to bring any evidence. The defense, however, proved by the witness Kobe in spite of it that these villages were neither destroyed nor plundered.
Neither is the alleged destruction of the village Dreznica proved by the prosecution. This name appears only in 3 documents of the prosecution. But the examination of these 3 documents shows that only war equipment was taken away from this village and its surroundings.
I omit the rest of the page and continue on page 40:
The mentioned reports contain finally combat reports on the destruction of shelters for the bandits. But not even the prosecution will be able to dispute the fact that the destruction of enemy shelters represents a legitime action of war. This is all what the prosecution was able to submit on the events which she included in the indictment.
In order to clarify further the representation of the prosecution I pass now to the other documents of the prosecution which shall also prove the senseless destruction and pillaging of civilian property.
I would like to deal first with the first charge. The prosecution submitted a series of reports concerning it. They talk of the destruction of villages and houses. But the prosecution was unable to bring any other evidence for its assertion that it was a senseless, not justified destruction. My conception is -- for reasons of principle -- that the prosecution has failed to fulfill the duty of evidence which was its task. It is not sufficient in times of war to prove that destructions did happen, in order to demonstrate that the destructions in question were senseless. Here the result off of the evidence is reversed. Whoever asserts a senseless destruction must prove the senselessness clearly and unequivocally. The prosecution has not done so in any way. This circumstances alone which goes equally for all documents of the prosecution excludes a condemnation for this count according to my opinion.
Incidentally it is not sufficient to assert in an overall way that all destructions were senseless, for the documents belong to two completely different kinds.
The first one of these groups and the by far most important is the one which deals with the destruction of shelters of bands and villages of bands. But it goes without saying that shelters and bases of the enemy can be destroyed in combat, must even be destroyed. Such measures are justified without further ado by the military necessity.
I will omit the rest of this page and recommend it for judicial notice. Continuing on page 42:
Further belong all occurrences in which the destruction of alleged hospitals is reported to such destructions which were necessary for military reasons.
All destructions of hospital huts were reported in connection with the destruction of bases of the bands. As I have proved in my proceedings of evidence the places in question were not hospitals in the sense of Central European hospitals but only barns or huts which served for band shelters and could also be used occasionally for wounded persons. I would like to recall in this connection the deposition of the witness Kobe who described two of these so called hospitals from his own knowledge. I will skip the rest of this paragraph and continue further at the bottom:
Of further importance in this connection seems the deposition of the same witness who declared that the region remained in the possession of the German troops so that the destroyed huts could not any more have found any use for wounded enemies. I may still point in this connection to the fact which follows from the documents themselves that these bases of the bands were reached after longer lasting fighting by the troops, so that the buildings were completely evacuated. The witnesses Kobe and Vinckelbrandt were also able to describe this in detail.
This gives evidence, according to my opinion, for the fact that these destructions were not against the international law either. Incidentally, it is not the duty of the defense to give this evidence.
I must turn now to another group of documents. They pertain to occurrences in which the units report that houses were burned down in looking out for acts of sabotage -mainly rail blasts and sabotage by mines. It is not necessary to enter here any more into the legal position. It is sufficient to point out that the actions concerned were not regular combat actions which did not exist at all, not even combat measures against large bands, but that they regularly were hostile actions from the circles of the civilian population.
In short words the actions concerned were actions of house partisans. From the documents submitted by the prosecution and as well from the exhibits of the defense it results on this count that plots of this kind occurred nearly daily, especially against the railway which served the civilian population just as much as the military. It follows further from these pieces of evidence that a retaliation measure was not carried out by far for every case of sabotage, but that retaliation measures were only taken if cases of sabotage happened in spite of warnings and of threats with retaliation measures.
It seems to me characteristic for the charges raised against General von Leyser that only a small number of destructions for reasons of retaliation were submitted in spite of the comparatively long time in which General von Leyser headed his corps in Croatia and Albania and in spite of the large area; this while it follows from the documents of the prosecution themselves that by far the paramount number of cases of sabotage were not atoned for. The same results also from the evidence submitted by the defense. For this kind of retaliation measures apply otherwise all the prerequisites on the competency for decreeing retaliation measures which I have fully explained above. Though General von Leyser consequently cannot be considered responsible for these retaliation measures even according to the documentary evidence of the prosecution, the individual documents were discussed in the evidence proceedings of the defense for the purpose of argumentation. In the case of every single exhibit it was proved that it was an entirely justified reprisal measure.