Count 1 of the Indictment charges the defendants with having madly unleashed a senseless torrent of death. This formulation implies 2 things, namely:
a) That the defendants had instituted measures of hostage taking and shooting of hostages arbitrarily, that is without cause and without any necessity in blind madness.
b) Disregarding the assertion that every reasonable cause for these measures is supposed to be lacking they are supposed to have been senseless also with regard to their alleged or asserted reasons which is obviously to be expressed in the words "senseless torrent of deaths".
with regard to these allegations and at the same time with regard to Count 2 of the Indictment I shall prove the following:
a) From the very beginning it was the aim of the military leaders in the South-East area to achieve a real pacification of the country which was to be also in the clearly conceived interests of the population of the occupied territory.
b) These reasonable endeavors of the military leaders were defeated for reasons for which not they but in the first place the opposition were responsible.
c) The success which was to be achieved by these measures could in part not be realized because conditions occurred which could not have been for seen when the above measures were ordered.
Count 3 of the Indictment Shooting of prisoners of war.
Here we have to differentiate between the following:
1) Shooting of members of Jugoslav and Greek forces
2) Shooting of members of other Allied forces
a) by reason of the Command-Order.
b) by reason of the Commissar Order.
3) Shooting of members of the Italian Forces.
To 1:
As far as the Jugoslav and Greeks, who had been shot, were concerned they were not members of the Armed Forces of a Nation at war but insurgents who by fighting placed themselves outside of the realm of law, which is shown by the following:
a) Capitulation of Jugoslav and Greek armies carried out by the commanders in charge.
b) The actual power in these countries had been transferred to Germany as the occupying power.
c) The fight was resumed in violation of international law.
d) The internationally accepted land war regulations were not adhered to.
e) Furthermore, the recognition of a power as a power at war is a political decision which was not the task of the military leaders in the South-East.
f) The military leaders in the South----East endeavored to achieve political recognition of a state of war without being able to raise any legal claims with regard to that.
g) In spite of the fact that this recognition which they were trying to achieve was refused, the captured partisans were treated as prisoners of war.
To 2:
a) Shootings by reason of the command order were not carried out.
b) The Commissar Order did not apply to the South-East.
To 3:
Shootings of members of the Italian Forces.
I shall prove that the individual shots were to be regarded as partisans according to international law because of the following facts:
a) By breaking her alliance with Germany and by virtue of her capitulation Italy lost her authorities which she had enjoyed in her capacity as occupying power.
b) The territories in the Balkans which had so far been occupied by Italy now became exclusively Germany operational territory.
c) The organized Armed Forces of a power which had suddenly become hostile and which were in this territory constituted an extraordinary danger to the operational projects within the German operational sphere. Thus the German request to surrender all arms was justified.
d) This request was consequently acceeded to in the form of appropriate orders of the Italian commanders -in charge.
e) The Italian soldiers or units which in spite of that continued to carry arms against the German troops were acting contrary to international law.
To Count 4 of the Indictment.
It is alleged that the defendant had without any reason connected with military operations helped to free Souther-eastern Europe from socalled inferior persons as for example: Jews, politically unreliabel individuals, e.g. democrats and nationalists. And that they helped to enslave and deport millions for forced labor.
As to that I am going to prove:
a) That the internment of certain groups of individuals in collection camps and the evacuation have been approved by the military leaders in the South-East only insofar as this was necessary in order to pacify the country and to secure operational objects.
b) That the military leaders in as far as they co-operated in the procurement of indigenous labor did that only because they considered this a way to pacify the country.
c) In as far as such measures could not be justified by military necessity the military leaders had no influence on these matters.
The above mentioned points I shall prove:
a) By examining the defendant as a witness on his own behalf.
b) By presentation of documents.
c) By examination of witnesses.
Already at this point I should like to mention that at the time when the defendant Foertsch will appear in the witness stand this evidentiary material will still be very incomplete. Besides the difficulties which are well known and which have been described in the motion for adjournment brought by my colleague Dr. Laternser as well as by me with regard to the procuring of affidavits as well as the translation of the document books must in this particular case be added that the defense has so far not had any opportunity to examine those documents which had been presented to the prosecution in the form of excerpts to the full extent.
This alone would give counsels for the defense the opportunity to prove the reasons for the shootings about which the prosecution has brought numerous examples from the same documents. So far it is not possible to say whether or not counsels for the defense will get the opportunity to do that at all. For that reason I must reserve the right event this stage, to make this extraordinary limitation of the defense which in the case of the defendant Foertsch may possibly lead to grave incompleteness of his evidentiary material the subject of an appeal which may possibly have to be lodged in this case.
I refrain from legally arguing against the charges which have been brought in the case of Foertsch at this stage. I shall do that in the course of my plea, but I should at least like to point out that I shall base his defense in the in the first place on the problem of participation according to criminal law. This comprises the following legal problems:
1) Is a mere "knowledge" of and "being connected with" the retaliation measures which have been designated by the prosecution as criminal actions sufficient to condemn the defendant Foertsch. I should like to correct here that instead of retaliation it should simply be measures.
2) If that is not sufficient which positive actions or omissions contrary to his duties is he charged of which prove that he aided in any criminal actions. Did he as chief of the general staff have any responsibility according to criminal law for retaliation measures which were ordered by others than himself and in turn were carried out by others than himself.
This lastword "retaliation" again I would like to have corrected to "measures."
JUDGE CARTER: Is counsel for the defendant Leyser ready to present the opening statement?
DR. TIPP (For the defendant von Leyser): Yes, your Honor.
In contrast to other cases which were conducted in this building before the High Tribunals of the United States, it is to be ascertained in this trial whether soldiers have committed in actual combat acts which are not consistent with the rules of international law and with the precepts of humanity. It is perhaps the first tine in history at all that the military leaders of a vanquished nation are summoned before the tribunal of a victorious State in order to be tried for military matters, at least on the same scale as is done here.
The Prosecution has accused the Generals arraigned here, and with this the German Armed Forces in general, of a inhuman warfare on the largest scale. The Defense has consequently got the difficult task of refutting this general accusation and of proving that the German Armed Forces as a whole have showed themselves as chivralrous and fair as is required by the honor of every honest soldier.
In order to be able to refute these accusations, it will be necessary to give to the High Tribunal as a basis for its judgment first of all a picture of a general nature of the conditions under which the fight in the South-East took place. For only the knowledge of the conditions prevailing at a given time and place makes it possible to give an explanation for many a thing which as a matter of course perhaps seems to be incomprehensible for any one who is not informed of these conditions. As in any case, this general clearing up will also in the case of my client, General von Leyser, form a basis for refuting the individual accusations made by the Prosecution.
General von Leyser came on 1 November 1943 for the first time to the Croatian area as Commanding General of the XV, Mountain Corps. It will therefore be necessary to make clear to the High Tribunal in the course of the evidence to be taken, what situations and existing con ditions General von Leyser had to face at that time.
At that date a uniform "national Jugoslav" army no longer existed in the theatre in Croatia. Therefore there were no clear front-lines as they exist as a rule in normal warfare. No complete military units were arrayed against each other, on the contrary everybody was fighting there against everybody else at that date. In the territory of Croatia which was occupied by the German Armed Forces groups of the most different political, religious and ethnic orientation were opposed to each other, which were fighting against each other and against the German Armed Forces. The weak German forces in this area were asisted by the Military Forces of the United State of Croatia which, however, were not likewise united among themselves. They were divided into the Ustascha, which were particularly hostile to Serbians, and the Domobrans. The fighting power and especially the discipline of these units left much to be desired. The enemies of these two groups were principally the Cetniks who in their turn were only hostile to the German army when the latter carried out operations together with Croatian units.
It is characteristic for the conditions prevailing in the Balkans and makes clear the difficult situation of a German commander that above all the Cetniks were not only enemies of the Croatian government, but that they opposed especially violently the Communist Tito bands which they combatted by all means. All these short allusions, which have to be cleared up in the course of the evidence to be taken by the defense as a whole as well as in the case of General von Leyser, show what enormous difficulties had to be overcome in the Croatian area in the military sphere alone.
These political contrasts are augmented by sharp religious and ethnic ones between Pravo-Slavs, Roman Catholics, and Mussulmen. The latter joined in most cases the party which predominated at the very moment so that in this connection the front lines were not clearly definable either. Add to this a certain antagonism between Serbs from the territory of Serbia proper and the Serbs from Croatia.
In order to make it a complete chaos, smaller groups of guerilla bands were of a fatal local importance, bands which were not part of a larger group, but joined for private raids. These were partly raids on their own account which have been customary in the Balkans for centuries, partly vendetta fights between individual families. Principally these groups were augmented by remnants of the capitulated Italian army which had stayed there.
All these groups and small groups waged war among themselves with the utmost cruelty and lack of consideration as well as against the civilian population who were not concerned in the matter. Respect for the laws of war was just as unknown to them as the sparing of property and human life. They created disorder wherever they could, because only in this disorder could they accomplish their own aims.
These are the obscure and confused conditions which confronted General von Leyser when he came to Croatia in November 1943. It was impossible for him as well as for anyone else to disentangle these conditions and to act as representative of the power of order.
An added difficulty was the fact that in all measures the competence of the Croatian state had to be taken into consideration, on whose officials General von Leyser had hardly any influence.
The Croatian armed forces did likewise not come under his command in principle and frequently frustrated his aims.
These circumstances, which necessitated the individual measures of General von Leyser, will have to be clarified in the course of the defense because only a thorough knowledge of these events enables the High Court to judge justly his way of acting.
It will further have to be pointed out on principle that General von Leyser had to submit to the command already established for years for the conduct of war in the Balkans. It was impossible just for him, newly arrived on the scene, to change these principles on his own initiative. He was further bound to the instructions and commands given him by his superior offices. His position was not so high that it was his business to determine the fundamentals of politics and conduct of war in his territory. All that he could do was to voice his opinion against commands which according to his mind did not answer the territorial conditions, thereby imposing his conception of humanity. It will be proved that he did this within the scope of the possibilities given him.
Before I touch upon the individual counts of the indictment brought against General von Leyser, one point for General von Leyser in my opinion has to be referred to, a point which already has been expressed in the speeches of my predecessors.
Without doubting the authority of the Honorable Court, conformable to duty, it must be pointed out that according to the conception of the defense the Honorable Court for international reasons is not competent to convict the defendants. In my opinion Regulation No. 7 of the Military Government for Germany, on which the formal competence of the Honorable Court is founded, is a violation of the Geneva agreement (Abkommen) as regards the protection of rights of war prisoners of 1929.
After the capitulation of the German armed forces, General von Leyser as well as the other generals were taken prisoners of war. Last January it was indeed attempted to release him as prisoner of war. But he did not agree to this release. Even if it would have been effected, it would have been without legal effect because it would violate the principles of the agreement just mentioned, chiefly because an actual discharge in freedom, a presumption for a discharge with legal effect of a prisoner of war, has not taken place.
General von Leyser therefore has to be treated according to the regulations of the agreement concerning war prisoners. Article 63 of this agreement, however, is worded as follows:
"A verdict against a prisoner of war must only be pronounced by the same court and according to the same procedure as a verdict against the persons belonging to the armed forces of the nation furnishing the custody."
Competent for the conviction of all defendants, including General von Leyser, would therefore be in my opinion only a court martial constituted of generals of the U.S. Army. The Tribunal, however, before which the defendant von Leyser has to stand trial is a civil court constituted of civilians.
I am of the opinion that the agreement concerning the rights of prisoners of war has an international character and therefore according to the guiding principles of international law cannot be altered by only one signatory power alone or likewise by the agreement of several signatory powers but alone and exclusively by the agreement of all the signatory nations. Such an agreement, however, is not present; the change only took place because of Regulation No. 7 of the Military Government for Germany. Said regulation thus far violates an international agreement and cannot have legal effect.
I therefore do not think the Honorable Court competent for the conviction of my client.
This conception of law had to be expressed at this place before the defense begins with the presentation of evidence to safeguard the rights of the defendant.
In the case of General von Leyser it will be first of all the concern of the defense to prove considering the different counts of the indictment that General von Leyser in his official position as commanding general of an army corps of the German Army could have committed the crimes charged by the prosecution just as little as in performing the tasks which were put before him particularly as commanding general in the Croatian territory.
As I have already mentioned in the beginning, General von Leyser took over the XV Mountain Corps from General Lueters in the beginning of November 1943. The predecessor of General von Leyser, General Lueters, was originally commander of the German troops in Croatia and had as such besides tactical also territorial tasks and powers. After the conversion of his staff to the XV Mountain Corps, he did not have these territorial powers and tasks theoretically any more, it is true, but practically they continued to be in existence. They ceased to exist on principle and finally only with the taking over of the XV Mountain Corps by a new man, namely General von Leyser. In contrast to his predecessor, General von Leyser had only tactical problems; his staff was completely converted to a tactical operation staff.
In the course of the defense this will have to be cleared up through testimony and affidavits.
The task to which General von Leyser was put on taking over the XV Mountain Corps was unequivocally limited and clear. It was the occupation of the territory between Karlovac and the coast, occupied by the Italian armed forces until then, and the preparation of the defense against anticipated attacks from the sea. These great and exclusive aspects determined all other measures. The war on the guerillas and the safeguarding of the roads and railways in the Croatian territory had an exclusively tactical meaning for General von Leyser. His measures in the field of guerilla warfare were directed only to the safeguarding of the supply routes in the event of an anticipated attack from the sea.
Everything he did and ordered was subordinated to this tactical task.
It is not so as generally represented in the indictment that the measures of General von Leyser were "a part of a certain plan for terrorizing and intimidation" or were even taken "to decimate the native population of these territories for coming generations". They likewise were not "arbitrary" or "senseless", but were based upon military requirements and were thereby justified. This will be cleared up in detail in the course of the defense. These great aspects, however, should not be disregarded when individual actions and individual regulations are judged.
I now come to the various counts of the indictment against General von Leyser. Under Count I of the indictment he is also blamed for the terrorizing, torturing, and murdering of persons who arbitrarily were designated as "partisans, communists, persons suspected of communist tendencies, bandits and persons suspected of banditry" or who were taken as hostages. I can keep the argumentation of this count very brief. The evidence presented by the prosecution does not contain any proof in this field. The prosecution has presented no documents which would testify the execution of such measures of General von Leyser. Just as little has evidence been presented that General von Leyser had proclaimed, passed on, or executed an order to shoot hostages in the ratio of 1:10, 1:50 or even 1:100. On the contrary the defense will be able to prove alone by reason of the evidence presented by the prosecution that the shooting of hostages was never personally ordered by General von Leyser. If such shootings were carried out at all by the troops under his command, they were only done in extremely rare cases and also in a proportion according to martial law adapted to the military necessities.
There is likewise no evidence that information of the so-called national army had been extorted from the population by using terror measures. On these two counts the indictment remains only a statement, without any attempt at proof.
As far as General von Leyser is charged, with acts of the 21st SS Division Skanderberg, the defense will prove that this unit was hot subordinated to the disciplinary power of General von Leyser. He therefore was not responsible for the actions and omissions of this division. Disciplinary powers over this unit likewise did not belong to General von Leyser when in a particular, specific case a tactical subordination ensued.
In reference to Count II of the indictment, evidence will be shown that General von Leyser has never given or forwarded orders for the pillaging, destroying, and burning of localities. In reference to this allegation quite generally made by the prosecution, the indictment of General von Leyser lacked every proof. If troops under his command destroyed buildings, such acts were in no case arbitrarily directed against a peaceful civilian population, as alleged in the indictment. These destructive acts were rather a direct result of hostilities, because the guerillas preferred to use houses and localities as positions. It further happened that houses which evidently had been used by guerillas as protection and shelter during raids were destroyed immediately after these raids. This conformed entirely to martial law. If destructions on a bigger scale took place, it will be proven that these destructions were based on the tactical necessity of taking the supply bases and shelter possibilities from the guerillas. Only in this manner was it possible to end the raids on roads used for supplies, because it was impossible to even occupy the smallest locality due to the small size of occupation forces. The evidence on hand will show that the destroyed buildings had long been deserted by the peaceful civilian population and only served as shelter to the guerillas, who had already been fighting in these regions for years using the most brutal methods of terrorizing the civilian population.
The indictment under number 9 1 of Count II holds the commanding general of the XXI Mountain Corps responsible for the burning, robbing, and looting of the villages Dresnica, Pisac, Tuzovic, and Vojvodersa by troops of the 392nd Infantry Division.
The time given is January 1944 to March 1945. To this it may he first of all said that the 392nd Infantry Division was never under the commanding power of the XXI Mountain Corps. This division was only under the command of the XV mountain Corps, whose commander General von Leyser was only until the end of July 1944. Therefore General von Leyser can only then he held responsible for the destruction of these villages if the destruction took place within this period.
Furthermore the prosecution has only produced evidence in reference to the village of Dreznica. Through the documents presented in the indictment the defense will prove, that this destruction took place in the course of heavy fighting, lasting for days, against strong guerilla groups, in other words during actions of hostilities, and that after all only 20 guerilla shelters and not the entire village were destroyed; looting did not take place.
On count III the indictment holds all the defendants responsible for illegal commands, namely the commissar order, the commando order and commands of general nature against the capitualated Italian army.
In reference to the commissar order, the defense will prove through affidavits, that General von Leyser, during the Russian campaign as commander of the 269th Infantry Division, neither received nor dispatched the commissar order nor caused its execution. It shall not be disputed that he knew of this order. But the knowledge alone is not punishable. Beyond this it will be proved that General von Leyser rejected this order as violating the honor of the soldier. Furthermore every evidence for the indictment of General von Leyser is missing on this count, on the contrary the documents presented by the prosecution show that this order was not carried out in the Croatian territory while General von Leyser was in command.
The commando order from 18 October 1942 was not intended for the Eastern theater. The command of 30 July 1944, which extends said decree to the foreign military missions in the Southeast theater, was neither forwarded by General von Leyser nor carried out in his sphere of influence.
Likewise on this count of indictment every actual evidence for the indictment of General von Leyser is missing. In spite of it, the defense will carefully prove that Englishmen as well as Americans were taken prisoners and were treated as prisoners of war.
In reference to the orders and measures against the capitulated Italian armed forces the following may be said:
The capitulation of the Italian armed forces took place in the beginning of September 1943. General von Leyser took over the XVth mountain corps on 1 November 1943. The orders presented by the indictment had at that time already been proclaimed, the measures against the Italian armed forces had for the biggest part been taken. Even if measures against parts of the Italian armed forces should have been carried out in the first days after General von Leyser took over the command, the defense will be able to prove, that basically he was not in a position to have any influence on tho carrying out, by subordinates of orders proclaimed by higher authorities previous to his assumptio of command.
If the prosecution accuses General von Leyser in Count IV of "inhuman" evacuations, the defense will prove with regard to this that those were no inhumanities, but military measures dictated by tactical requirements.
As the defense will prove with regard to this, it would have been necessary from tactical reasons to evacuate civilians from areas which in case of an enemy landing at the coast might have become focal points of fighting or especially endangered zones for supply, in tho course of the actions which were to be foreseen. Such a measure corresponds to military habits and does not constitute an offense against the laws of war. For the basis of this assertion it is to be pointed to the fact that at the beginning of the war such evacuations were carried through by tho German commanders in the Reich territory as well as by the French government in France, and that the American government also considered it necessary to evacuate, at the beginning of the war against Japan, large parts of tho Japanese population from tho Western coast of America. It was neither the task of General von Leyser in his capacity as Commanding General of a tactical operational staff to decide on the further destiny of tho evacuated civilians, nor was he obliged to do this. He had nothing to do either with the civilians being committed to concentration camps, which was a purely police measure, or with tho employment of parts of the population as compulsory workers or even with the deportation to the Reich for labor.
Such measures would have been taken by the German authorities endowed with territorial powers, in agreement with the offices of the united Croatian State. Such measures could neither be ordered by General von Leyser nor had he exerted any influence on them, as will be proved in particular by testimony and affidavits.
As far as workers were employed for the army, for the construction of fortifications and pillboxes, it was done as the defence will prove on the basis of free mutual agreement. There were people enough volunteering for work in the United State of Croatia, who were happy to have a possibility of earning money and to at the same time supplied with food.
It will be necessary, in this connection, to deal in detail with the operation "Panther". This operation is set forth by the Prosecution in Count IV, paragraph 15 g. As far as an evacuation of the civilian population was intended here by General von Leyser, it was based on military and tactical requirements. Even the documents of the Prosecution prove that the territory in question had for years been a centre for the activity of bands, from which continuous and increasing disturbances of indispensible supply roads and railroads were undertaken. In order to secure the line of retreat for the attack to be expected from the sea-side, it was necessary to remove finally the risk of being endangered by bands in this area. An order to deport the population to the Reich, as alleged by the Prosecution, had not been given by General von Leyser, as such a measure exceeding the more tactical field was outside his jurisdiction. Evidence that the operation "Panther" was indeed carried through in the sense alleged by the Prosecution, was not produced by the Prosecution.
In order to refute the individual Counts of the Indictment, the Defense will prove that General von Leyser has done everything in his power to guarantee chivalrous warfare in accordance with the precepts of the laws of war, even in the confused and complicated conditions of guerilla-warfare in Croatia.
He strictly supervised the troops under his command by all possible means as to their conduct and proceeded with rigour against excesses and enroachments. In this endeavor to fulfil in every respect his obligation to supervise and care for the troops under his command, he always tried, as far as ever possible, to inform himself on the spot of the actual conditions and to come by personal observation to a rightful judgment on the situation.
The Defense will also prove that General von Leyser in every regard took into consideration the conditions of the civilian population as far as the fulfilment of his tasks allowed this. Moreover he always helped the civilian population to a large extent for reasons of humanity and he endeavoured to relieve the distress caused by the war, by their own and enemy action in land warfare and by air raids.
I will show you General von Leyser as an officer of the old school, bound to the old traditions of honesty and loyalty, who fulfilled his duty of a soldier and officer in the hardest combat of his nation, respecting the laws of war and the precepts of humanity.
JUDGE CARTER: Is counsel for the defendant Speidel ready to make his opening statement?
DR. WEISGERBER: Yes, your Honor.
Mr. President, your Honors, as defense counsel for the defendant Speidel I believe to be able to keep my plea very short.
I can refrain, at this point, from dealing with questions of international law about arrest and killing of hostages by way of reprisals; especially if and how far the Greek partisans gave cause to such reprisals. However this may be, even according to the evidence material so far submitted, considerable doubts have come up as to the question of warfare according to international law. Defense counsel Dr. Laternser has given sufficient evidence of this in his plea for his own client. This is equally valid for General Speidel and I do not therefore have to repeat it.
The prosecution charges my client with the following points:
1. The arrest and shooting of hostages by units under his command.
2. Wantom destruction without military necessity, and plunder by troops under his command.
3. Giving and passing on of so called Kommissar orders and Kommando orders, and giving of orders for the punishment of resisting Italians, as well as carrying out of such orders by troops under his command.
4. Forced deportation of the entire male population of whole villages within Greece for the purposes of forced labor to Germany.
I shall prove that the defendant Speidel can in none of these cases be held responsible: Especially, as he had no executive power. And if he was not in the position to give orders, he can naturally not be made responsible.
In none of these events he took part either.
(A) as perpetrator (B) or as aid, or abettor, nor did he give orders or approved of such.
Naturally, the defense of the defendant Speidel is considerably hampered by the fact that the prosecution has made no exact statement which of the individual cases that have come up, the defendant Speidel has been charged with.
Admittedly, it enumerates a number of happenings in the indictment but at the same time declares that this enumerations is not exhaustive.
Is the defendant Speidel supposed to make his own choice of the charges by the prosecution? This is a task which should be done by the Prosecution and the prosecution cannot be relieved in this by the defendant; or is Speidel being made responsible for everything that happened in the Greek theatres? Does the prosecution want to charge him even such events in which, according to the documents submitted, one executive army unit did not even participate? The lists which have boon added to the individual document books are, in this respect, not complete.
But, in order to give the defense the possibility to take up a definite attitude as to the charges of the prosecution, the prosecution should not only mark the documents which, among other matters, contain some material against my client; they should mention each case and in that way it refers to each individual defendant.
But this does not become evident either from the oral submission or the submission of lists added to the document books because almost each one of these documents contains in a varied succession, compiled according to entirely different points of view, a number of reports and facts which, according to these documents, would be put in a now order referring to each individual defendant.
The prosecution has charged the defendant Speidel with cases which without the slightest doubt are even outside his geographical territory of command and, therefore, are certainly not within his competence.
I refer only to English Document Book XVI, NOKW-674, Exhibit 381.