2. As a result of being appointed merely as deputy for a period of time limited in advance, his direction was naturally within certain limits. This consisted above all in the initial stages of his command in the obligation to already existing situations created by the command before he took over.
3. The activity of General KUNTZE consisted in the first place in the carrying out of operative measures. General KUNTZE looked upon the success of these measures as his main task as is the case with every director of strategy conscious of his responsibility. Within the frame-work of this activity the task arising out of the occupation of the South East which were passed on to the Territorial commanders to be dealt with independently were only of secondary importance. From this point of view the characteristics of the offence which form the basis of the indictment must be assessed too.
In my closing speech I will go in more detail into the legal problems which have to be dealt with in these proceedings. Moreover, they have already been thoroughly discussed by my colleague Dr. LATERNSER in his opening statement. Therefore I can limit myself to referring briefly to these questions in my opening statement:
The prosecution bases its accusations exclusively on the Control Council Law No. 10 of 20 December 1945 to prove the punishableness of these incidents. This law, however, was only proclaimed some years after the events with which the prosecution charges the defendant KUNTZE. Therefore, it endeavours with retroactive power to create a punishable characteristic of the offence. In accordance with the legal principles recognized in the criminal law of all civilized countries "nullum crimen sine lege" and "nulla poena sine lege" the subsequent standardisation of a punishable characteristic of an offence cannot, however, constitute punishableness if at the time the offence was committed no norm of punishment existed. If international law had wanted to punish these actions before 1939 the possibility of doing so would have existed for even then there were innumerable international agreements into which such norms of punishment might have been inserted. It will be stated further that other rules of international law too which are binding for a German citizen were not violated by the defendant KUNTZE.
In this connection, I shall demonstrate that international law, insofar as it has not been incorporated in German Reich Law, simply cannot incur a responsibility on the part of individuals. For international agreements entail obligations only on the part of the contracting countries themselves.
This applies also to the Geneva Convention and the Hague Convention, quite apart from the fact, that in these agreements any standardization of punishableness is lacking in the event of contravention of the rules by one of the partners to the treaty.
Therefore, the defendant KUNTZE could only be held responsible for violation of existing German laws. Since he is accused of acts which he is supposed to have committed as a soldier, the question of responsibility arises only if such exists for these acts according to the Military Penal Code. It will be demonstrated that the measures taken by the defendant KUNTZE were carried out on orders of the highest command of the Wehrmacht and within the frame-work on instructions issued by the latter which were binding for the defendant KUNTZE. In carrying out these orders the defendant had to assume that they were in accordance with the rules applied in Martial law. Accordingly the defendant KUNTZE is exonerated of responsibility in accordance with Par. 47 of the Military Penal Code as I shall demonstrate more fully in my closing speech.
In addition, in these proceedings, the right of admissibility of reprisals, in particular will remain to be thoroughly examined. I shall demonstrate in my closing speech that there is no international law concerning the taking of hostages. In international literature the right is disputed, is, however, extensively recognized as permissible and that also in the literature of Anglo-Saxon countries.
Therefore there can be no question of prohibition of the taking of hostages. Add to this that, as the nations' conduct of war proves, this right has been exercised until most recent times. The same holds for the right of execution of persons as reprisal hostages in connection with unbearable offences of the enemy against the conduct of the war for which the latter are made responsible.
From the point of view of proportionality I shall demonstrate and prove that in the literature pertaining to international law no limit is fixed for the proportion of atonement. The standard is rather dutiful assessment.
Further discussions in my closing speech will deal with the question of obedience to orders issued. I will go into the character of the military orders and show that these were binding and that non-adherance to them would have been tantamount to revolt against the supreme power. In this connection too, the question of responsibility for measures on tho grounds of such order will have to be gone into. I shall demonstrate that orders of the highest command of the Wehrmacht constituted in principle no responsibility on the part of the organs carrying out the orders that rather the responsibility was borne exclusively by the commander in Chief of the Wehrmacht.
Such orders were not subject to checking so that the military rank of the person carrying out these orders was of no account.
In themselves simply they had the appearance of legality. In a material respect I shall demonstrate the following:
According to Count I of the Indictment General KUNTZE is accused of killing civilians of the South East Area, in so far as this was occupied by Germany, by collective punishing. On the contrary I shall prove that the defendant is not guilty of the charge brought by the prosecution. The execution of reprisals, especially killing reprisal hostages, cannot be traced back to the initiative of the defendant KUNTZE. He neither introduced them in the South East area, nor caused them to be carried out initially. When the defendant KUNTZE took over his duties as deputy military commander South East, he found many orders pertaining to collective punishment already in force. The defendant KUNTZE could not make any changes then, because these orders had already been issued to the subordinate military posts and besides, he was not familiar with conditions in the Balkans at the time he took over his duties. Furthermore, he was only sent to the South East as deputy military commander South East for the duration of his predecessors illness. Finally, the defendant KUNTZE had to accept, as legally binding, these orders that had been issued, and of which he only learned by and by because his position kept him very busy right after he took over his command, especially since he had to make official trips through the territory he controlled, because they had been issued by order of and in accordance with the directions of the superior office.
Therefore, these reprisal measures, which were carried out according to these orders, cannot be considered as a charge against tho defendant Kuntze.
It can also not be said, as the prosecution says, that tho defendant KUNTZE must have realized the "criminal nature" of those orders. As shall be proved, the execution of these orders during his command was no violation of existing national or international laws, and especially not a crime against international law or humanity, even though they necessitated severe measures, such as a war naturally brings to humanity.
In particular, the execution of these reprisal measures did in no way represent, either in purpose or goal, a plan to terrorize the civilian population, as the prosecution maintains. They were, rather, as shall be proved the result of acts in violation of international law on the part of a portion of the population of the occupied countries, who endangered the peace and security of the occupied South East area by attacks on the German occupation troops, by sabotage and by fighting amongst themselves. Therefore General KUNTZE must necessarily get the impression, from the continuously arriving reports from subordinate offices and commands, that quiet and security in the South East area could only be guaranteed by means of strong measures, as had been ordered by the High Command of the Army and through corresponding orders issued by the military commander South East before he (KUNTZE) took command. The restoration of order was also a duty of the occupation troops toward the civilian population. Even though General KUNTZE had to be convinced, after seeing local conditions and learning about the existing regulations, that stern measures were absolutely necessary, he none the less left no stone unturned, while he was in command to soften the prescribed measures for the benefit of the population. Thus he influenced General BADER in this respect, as will be proved, and arranged, among other things, to have the reprisal ratio reduced through General BADER.
It will further be proved that in the spring of 1942 General KUNTZE even personally requested the highest Army leaders, i.e. JODL and KEITEL, to have the measures softened. He did this even though he well knew that at that time such a request would have personal disadvantages. This is even more so, because he was already considered by the Army High Command as too mild and too soft. He cannot be blamed if his requests were not successful, but rather his attempt must be recognized. At any rate, he could not simply ignore the orders issued by the highest Army leaders, especially since these were issued by HITLER'S express order.
From then on his efforts were directed toward softening the execution of these orders in his area of command. It shall be proved that the orders concerning reprisals were not carried out to the extent ordered. On the contrary, many of his subordinate offices and commands deviated, with his consent, in many individual cases, from the reprisal ratios ordered by the Army High Command. I shall show the Court, by a comparison of the losses of the German troops, and their Allies, with the number of persons shot in reprisal during the time General KUNTZE was responsible, that only a fraction of the number ordered by the Army High Command was involved. Also, inaccurate reports of high losses of the Partisans were made to the military commander South East, and by him to the Army High Command. It will also be proved that wherever possible, cruelty was avoided in the selection of the persons to be used in the carrying out of the reprisals. This was especially done by almost exclusively using persons who, through their activities, already deserved the death sentence according to the laws of war. Apart from this it is pointed out that in the final analysis it is not possible to force an elementary incident such as a war, into a legal frame work. Every occupation force must be prepared to use the means that are deemed necessary to assure order and security in the countries it has occupied. The history of war of the past as well as of modern times proves that the application of the measures necessary to insure the security of the occupying force and of the population depend primarily on existing conditions and that the usual standards must necessarily be relegated to the accomplishment of these goals.
In so far as the defendant KUNTZE is accused, under count 2 of the indictment, of burning down homes, I shall prove that there can be no question of a "far-reaching devastation of the occupied country," as maintained by the prosecution. The prosecution has only submitted three documents in support of this statement, in which it is shown that homes were burned to the ground while the defendant KUNTZE was in command. I shall show later that two of these documents do not concern the defendant KUNTZE.
However, the burning of the house mentioned in the remaining document was, as I shall show, entirely justified by the existing regulations.
Up to this point the prosecution has offered no proof to support its charge that the economy and industry was ruined in order to lower the economic and industrial potential and to destroy the population. To refute these statements of the prosecution I will show that the German army commands did everything they could to bring the economy, which had above all been upset by the Partisans, on its feet again. Railroads, factories and mines were repaired. The German authorities also did all they could under the circumstances to intensify the agricultural program, Over and above that, relief measures for the population of the South East area were instituted, as I shall show in detail in final argument.
In so far as the prosecution looks on the Partisans as members of a regular army, and considers the measures carried out against them as crimes against members of Allied forces, as set forth in count 3 of the indictment, it is pointed out that the prosecution has not so far been able to prove the correctness of their contention.
I shall show that it was only in later years that Allied governments considered the question of whether or not they should recognize the Partisans in the Balkans as regular armed forces. The prosecution will not, on the basis of the evidence they have presented, be able to maintain the charge in the indictment that these bands fulfilled the requirements necessary for recognition as a regular army during the time up to August 1942, which is the period that the defendant KUNTZE held the positions of Deputy Commander in Chief of the 12th Army and Deputy Army Commander South East.
I shall prove that these bands or Partisans had nothing in common with a regular army. As shall be proved, they generally wore civilian clothes without any insignia that could recognized from a distance, or also captured uniform pieces, often even German uniforms which they had taken off of dead German soldiers.
But what is most important, they did not fight according to any rules or customs of war. They did not carry their weapons openly and only fought from ambush. They evaded every open battle. They did not treat captured German soldiers according to the rules of international law or humanity. Captured German soldiers, including the wounded, were murdered. But their deceitful warfare affected not only the German occupation force but also their own people whom they harassed and often forced to tolerate and support their deceitful warfare. As a result of these violations of international law they had to be considered and treated as armed insurgents.
The activities and methods of such bands are known from World War I. This irregular activity of bands is also characteristic of the Balkans. As shall be shown, every foreign occupation force in the Balkans must count on this ambush warfare and meet it with appropriate measures. Even until this day the activity of bands is a source of trouble which does not allow peace to settle in the Balkans.
Therefore, this partisan movement in the Balkan, traceable through the whole course of history, could surely not have been a consequence of the German invasion, as the Prosecution contends. On the contrary, I am going to prove that it was just that Guerilla-bands activity which first engendered the counter-measures ordered by the German Army Chiefs. Consequently, the German Army was in a state of legitimate defense in combatting these bands by way of the measures ordered.
Moreover, I shall prove that the defendant KUNTZE was not the first to order those measures against the Guerilla-bands movement taken by the WB (Military Commander) South-East. Also in this respect there had already at the time, when General KUNTZE took over, various binding orders by the German Army Chiefs been in existence, which resulted in the orders issued by the offices charged with maintaining order and security. Though considering these measures as a legitimate counter-defense by the German Army Chiefs in view of all the reports he had received about the extent and nature of the Guerilla-movement, General KUNTZE nevertheless endeavoured to mitigate those measures in accordance with the situation and with his humane attitude, as I shall prove.
It will also be proved that his remonstration with the German Army H.Qu. were in vain, and even considered as evidence for his weakness. I shall explain that the measures taken so far by the WB-South-East (Military Commander SouthEast) were, in a sharp manner quite unusual among military men, called inadequate and that orders were issued to take the harshest measures possible.
Moreover, the defendant KUNTZE also endeavoured to mitigate the measures he had to carry out in consequence of orders received, as I shall prove. I shall also prove that the defendant KUNTZE even allowed that captured partisans whom he ought, on account of the orders issued, to have shot, were not shot, but employed as laborers, thereby saving them from the death which in fact they would have deserved.
As far as the defendant KUNTZE is charged by the Prosecution with the responsibility for orders issued and measures taken by commands subordinated to him, it will be proved that not all the orders and measures of these commands were brought to the knowledge on the defendant KUNTZE. It will be explained that those orders and measures which came to the defendant KUNTZE's knowledge at all, did not allow any action on his part, as they did not exceed the binding orders of the (OKW) Supreme Command of the Armed Forces. On the other hand, the orders and measures which did not come to KUNTZE's knowledge, cannot be charged to his account. In this respect, any responsibility on his part is out of question.
Furthermore, I shall refute the allegation of the Prosecution that partisans had been shot without any judicial procedure. Contrary to what the Prosecution asserts I shall prove that, when the fighting subsided, at least a simplified summary court martial procedure has been instituted.
In as far as the Prosecution blames the defendant KUNTZE for the so-called "Commissary Order", it will be proved, that this order was issued exclusively for the Eastern theatre of war. But even in the East that order was not carried out by the defendant KUNTZE in the form submitted by the Prosecution. I shall prove that captured commissars were, by explicit order of the Supreme Commander of the 9th Army, under which the defendant KUNTZE was in the East, not to be shot, but to be treated as Prisoners-of-War. In accordance with this order the matter has then been treated in the area of the 9th Army.
As far as General KUNTZE is charged by the Prosecution with the so-called "Commando-order" it will be proved that the defendant KUNTZE was, at the time when that order arrived at the Military Commanded South-East already with the Reserve Army, and had, as Chief of the training in the Reserve Army, nothing to do with that order, so that he was not in a position to carry it out nor to pass it on.
Besides, in this respect, a conclusive statement on the part of the Prosecution is lacking.
Count 4 of the indictment refers to the charge to have terrorized the civilian population by deporting them for forced labor and detaining them in concentration camps. In opposition to the allegation that deportation of so-called unreliable elements into concentration camps had been ordered and carried out by the WB (Military Commander) South-East or by Commands Subordinated to him, I am first going to prove that those camps were no concentration camps as known today but only so-called Community Camps (Sammellager); so far the Prosecution has really in no way alleged, let alone proved, that the characteristics of a concentration camp in the currently accepted meaning of that word can be applied to these camps. The necessity to establish so-called Community Camps, however, is in no way incompatible with the rules of International Law, as I will explain in my closing speech, the more so, as also other states considered it necessary to establish camps of this kind even in recent times, and did, in fact, establish here.
Furthermore, I am going to prove what membership to a certain national group or, race or political grouping were, in themselves, no reasons for concentrating people in such community camps. It will be shown that on the Balkans, Communists, Jews and Gypsies were particularly active in the Intelligence Service of the partisans or helped them in other ways, thus proving themselves suspect of being connected with guerrillas and as unreliable elements. Besides, evidence will show that detention in these community camps was not ordered arbitrarily. On the contrary, explicit orders were issued to the effect that it had to depend on the results of the re-examination of the detained, whether they had to remain in these camps.
I will show that people who proved to be innocent were released. This is, as I will explain, clearly shown by various documents submitted by the Prosecution itself, where, in speaking of Community Camps, also releases are mentioned.
Moreover, I shall prove that the people left in these camps after reexamination were particularly after December 1941, almost exclusively captured partisans or their helpers, who would have deserved to be sentenced to death according to the laws in force. Therefore, it was only just to use these people in the first place when reprisal measures had to be carried out. Incidentally, the defendant Kuntze found those Community Camps, when he took over his official duties, already fully established, so that it was not he who ordered to establish them.
Never has the defendant Kuntze, as alleged by the Prosecution, ordered to establish Jewish Concentration Camps in the current meaning. The Prosecution has produced no evidence for that. Camps of that kind did not exist in the South-East.
Inasfar as the defendant Kuntze is charged by the Prosecution with the crime of using partisans in Serbia as workers in the interest of the Germans, it must be replied that this measure was in the very interest of the persons concerned. This way they were saved from welldeserved death. Besides, the Prosecution neither conclusively contended not proved that any facts about a treatment of these laborers in a manner contrary to human dignity had come to the defendant Kuntze's knowledge while he was in command.
Furthermore, it is asserted that only the Police was authorized in matters regarding employment of prisoners. The police received their orders from the quartermaster General and from Himmler himself, as I shall prove. In so far there is no responsibility on the part of the defendant Kuntze.
In this connection the partly overlapping command-channels will be demonstrated, as found by the defendant Kuntze when he took over. In the first place it will be proved that the Military Administration often acted quite arbitrarily and that repeated representations were made by the defendant Kuntze regarding the Administrative Staff of the Military Commander in Serbia, even, that frequently the relief of the Chief of the Administrative Staff had been demanded from the O.S.F. (Supreme Command of the armed forces).Having concluded my statements referring to the counts of the indictments I deem it my duty to point again to the difficulties confronting me as a counsel for the defense.
I can, at this moment, deal only with material that has been chosen and submitted by the Prosecution from the point of view, that of-course-suits it best. The evidence concerning the events that induced the defendants to take the various measures, is, on the other hands, generally not accessible to me. In as far as the documents submitted by the Prosecution do not yield circumstances apt to exonerate the defendant, I am in the main reduced to relying on my client's memory which has suffered in consequence of the long duration of the war and the frequent changes in his military appointments but particularly also as a result of his being psychically affected by the events of the post-war period, so that it has become deficient in a way. Thus, the defense is not in a position to contribute their share in clarifying the extensive material of the trial which would be necessary in the interest of conducting this trial objectively. In addition, the time available to the defense for preparing the evidence must be considered a very scanty one compared with the time at the disposal of the Prosecution for collecting their evidence and preparing their line of action. In this connection I well may point to the difficulties encountered on account of the prevailing state of affairs regarding mail and communications in Germany in carrying on the necessary correspondence in view to collecting evidence. Under these conditions I feel bound, by way of precaution, to reserve all those rights for the further conduct of the procedure which may result from that difficult position of the defense in the further course of this trial.
In conclusion, may I be permitted to mention the following facts concerning the personality of the defendant Kuntze, which I shall prove by submitting affidavits.
General Kuntze was a general of the old school, who was never eager to push himself to the foreground or to expose himself, but on the contrary did his duty with reserve and modesty. He wa,s deeply religious and had a pronounced sense of duty. By all people who know him he is described as a just superior whose paternal care was appreciated by the soldiers entrusted to his care. His attitude to the population of the occupied countries was also humane, and to the best of his ability he looked after this population. It is significant that he never enjoyed the favour of the people then in power.
It was known that he was not in good repute either with Hitler, or with the Supreme Staff of the Wehrmacht, which is shown by the fact alone that he was not promoted during the whole war and was not appointed Supreme Commander of the 12th Army nor Military Commander South East.
Surely an officer of this type was not capable of consciously committing war crimes or crimes against humanity, such as he is charged with.
DR. RAUSCHENBACH (Counsel for the defendant General Foertsch): The interpreters have the translations -
THE PRESIDENT: Just a minute, please. I understand that the translation for the defendant Lanz has now been furnished to the Tribunal -- or can be furnished to the Tribunal - in its English translation. If Dr. Sauter is agreeable, we might hear it at this time.
DR. SAUTER: (For the defendant General Hubert Lanz) Your Honor, General Hubert Lanz has merely been indicted because of alleged incidents in the Epirus sector which was under his command (including the Jonian Islands). It is an established fact that Lanz was never military commander ("Militaerbefehlshaber") for Greece or her north-west districts but merely troop commander as commander of the XXII Mountain Corps.
He was given this post in Athens in the middle of August 1943, but in fact it was not until 9 Sept. 1943, that he tool over the command in the Epirus sector (See Doc. Vol XIX; page 82) which he kept until 13 Oct. 1944 until the evacuation of German troops from Greece.
During this period he was absent for almost 4 months (i.e. from 11 Jan. 1944 to 25 Feb. 1944 on home leave and from 5 March 1944 to 4 May 1944 on assignment to Hungary) so that by this reason alone he is for the above mentioned periods, not responsible for actions which at that time were supposedly carried out in the Epirus sector.
DR. SAUTER: "Courts of the Indictment against General LANZ" The Prosecution charges all defendants, thus also General LANZ, with having PLANNED THE TERRORIZATION OF THE BALKAN PEOPLES and having made this plan the basis for their conduct.
Defendant LANZ knows nothing of such a plan, he neither received orders concerning such a plan nor did he ever hear of such a plan in the course of official or private conversation. The defendant encountered this supposed plan for the first time in the bill of indictment of this trial."
Then, Your Honors, on Pages 2, 3 and 4 I have compiled the individual points of the indictment which the Prosecution charges. And I have marked the individual documents to make it easier for the Tribunal. I do not want to read this compilation here; instead I shall turn to the second chapter on Page 4, under Roman numeral II.
"General-LANZ'S Reply to the Indictment LANZ makes the following reply to the individual counts of the indictment, reserving legal problems (such as the Tribunal's competence, the right to make reprisals, limitation of the binding force of military orders, etc.
etc.) to be dealt with at a later date.
A.) General remarks:
1.) In the Epirus sector, LANZ had the task to prevent a landing of Allied troops on the north-west coast of Greece and, for the purpose, to maintain peace, security and order in the country. It was his intention to fulfill that latter task in a peaceful manner, if possible, in order to save his troop from losses and at the same time to spare the country and the population of the occupied territory.
In the course of his efforts in this direction, during the whole period of his activities in the Epirus sector, LANZ
a) worked in Joannina on a peaceful footing with the authorities of the state, the towns and the church;
b) supported as far as possible the International Red Cross under direction of the Swiss BICKEL,
c) assisted the peaceful population and spared them as far as permitted by war conditions and
d) by mutual agreement avoided whenever possible fights against the national partisans (under General ZERVAS).
General LANZ' efforts were also successful and were recognized by the Greeks.
2.) In the course of his troop inspections which took place nearly every day as well as his numerous conferences with the commanding and line officers he continuously pointed out that all unnecessary severity towards loyal civilians should be avoided so as to ease the inhabitants' heavy burden.
Whenever he learnt that the troop had nevertheless taken measures which were unnecessary in the light of the military position he intervened rigorously and took steps for the punishment of the culprits.
3.) Defendant LANZ opposed the question of hostages on principle. On a single occasion only forced by conditions, did he order the taking of hostages; the hostages were released again as this measure had the desired results.
Besides, the above mentioned order was fully justified from a military point of view and it was also in keeping with American regulations since it was meant as a protection of lines of communication of special tactical importance.
LANZ never ordered any measures for reprisals.
He did, however, express the hope in an obituary notice for a regimental commander (Lieutenant Colonel SALMINGER) murdered by partisans (see order of the day to the Corps dated 1 Oct. 1943 contained in Doc. Book XIX page 128, NOKW 867 Exh. 453) that the division would avenge this murder by a ruthless action of retalia tion.
With this he did not intend to hit innocent inhabitants but to send the culprits to their deserved punishment; as he must have thought that the latter were hiding near the place of murder, he ordered that the area for the carrying out of the action be restricted (20 km).
LANZ never ordered or approved of the destruction of localities unless such destruction was tactically necessary during a battle. The Prosecution's assertion referring to the existence of concentration camps does not apply to Gen. LANZ' command.
4.) As can be seen from Document Volume XIX p. 1104. NOKW 1104, Exh. 451 and Volume XIX p. 150 NOKW 864, Exh. 455, which have been submitted by the Prosecution, the first Mountain Division under the command of General LANZ issued in September and October 1943 "special orders" concerning the Ic-department (that is, enemy propaganda and counter intelligence) which, among other things, also contained instructions about measures to be taken with regard to hostages. General LANZ learned about these "special orders concerning the Ic-department" only now that these two above-mentioned documents have been submitted.
5.) With regard to the reports frequently mentioned in the documents, LANZ, in connection with the procedure and in order to clarify his sphere of responsibility, states the following:
Reports by battalions, regiments, etc, etc, to the divisions which were not transmitted by them to General Headquarters remained unknown to the latter. Therefore, the commanding general (LANZ) could not be expected to know about them.
Reports from the divisions to General Headquarters went to HQ Department Ia (operations), were coordinated there, and were then submitted to the chief-of-staff. The chief-of-staff in turn made an usually oral report to the commanding general about all the essentials in the sphere of daily tactical orientation. If at that time there were objections, uncertainties, or if it was necessary for General Headquarters to issue orders, the chiefof-staff was instructed to clarify the circumstances or to carry out the orders, respectively.