I need not add what such a procedure would have meant to you.
"Considering the fact that you and Lt. Capsis had carried out military orders and that you had been caught in regular uniform I tried to persuade the Army-Group Command and tho OKW to take another view of your cases. My endeavours remained fruitless. I therefore thought it best to give your names to tho Swiss Red Cross at Athens' who safeguarded the interests of British POW's. In consequence, this organization took care of you and supplied you with food parcels. Moreover tho Red Cross people made inquiries with me on your well-being and especially on your possible transfer from Awerow-prison into a POW camp. I was now in the position to report to my authorities that, owing to a mistake, the Swiss Red Cross was acquainted with your case. Thereupon the OKW decided to agree to another application from our side to acknowledge you as POW, and treat you accordingly. You and Lt. Capsis' transfer from Awerow-prison into a camp could now be carried out.
"The Commander-in-Chief of the 68th corps, general Felmy, know about these facts. He was in unrestricted agreement with my outlook and measures regarding your case and covered them by his name in his reports to superior authorities. He did that in spite of Hitler's menace that those officers who proved themselves to be weak in the execution of his orders regarding "Command Troops" had to be severely punished.
"In normal circumstances this matter of course treatment of British POW, by German officers would not be worth mentioning. I only refer to this event because General Felmy with other generals of the south-eastern Command stands a charge before the American Military Tribunal at Nurnberg. One of the Charges of the execution of the above mentioned "Command Order" of Hitler."
"In this situation I request you, Sir, to give a statement in favour of General Felmy; for you and Lt. Capsis have been our only prisoners who would have to be treated according to that order, which, however, has been frustrated by our measures."
Now, this Captain McGregor says himself, it may be found on page 37, the beginning of this document.
"I, Robert,McGregor, Captain, demobilized from H.M.Forces, do solemnly and sincerely declare that I was captured by tho German Forces in Greece it the Spring of 1944, and the circumstances of my capture and the subsequent treatment given to me were as stated in the attached letter dated 26th August 1947 and signed by Guenter Kleykamp.
"I further declare that I was never at anytime subjected to physical violence and that during my captivity in the area of the 68th Corps I was treated as a Prisoner of War.
"It is my opinion that General Felmy, C.C. 68th Corps must have known of my circumstances and concurred with Captain Kleykamp in mentioning my case to the Red Cross and thus possibly preventing my execution."
In this connection, I would like to recall the affidavit given by Kleykamp which I have submitted sometime before.
PRESIDING JUDGE CARTER: Has it been determined who is to follow you in the presentation of testimony?
DR. MUELLER-TORGOW: It doesn't come through your microphone sir.
PRESIDING JUDGE CARTER: I said, has it been determined who is to follow you in the presentation of the -
DR. MUELLER-TORGOW: Would you try once again, sir, the line isn't very clear.
PRESIDING JUDGE CARTER: I said, has it been determined who is to follow you in the presentation of further documents or evidence?
DR. MUELLER-TORGOW: I am afraid I don't know, your Honor.
PRESIDING JUDGE CARTER: Will you see to it that when you got through that someone is ready to take up our time when we reconvene next year?
DR. MUELLER-TORGOW: Certainly, your Honor.
PRESIDING JUDGE CARTER: The Tribunal will recess at this time until Monday, January 5, 1948, at 9:30 a.m.
(The Tribunal recessed at 1631 hours, 23 December 1947 until 0930 hours 5 January 1948.)
Official Transcript of Military Tribunal V, Case VII, in the matter of the United States of America against Wilhelm List, et al, defendants, sitting at Nurnberg, Germany, on 5 January 1948, 0930 hours, Justice Wennerstrum presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal V.
Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if all the defendants are present in the Courtroom.?
THE MARSHAL: May it please your Honors, all defendants are present in the Courtroom with the exception of defendant von Weichs who is in the hospital.
THE PRESIDENT: You may proceed.
DR. MUELLER-TORGOW: Mueller-Torgow for General Felmy. If the Tribunal please, in the last session last year, I had not entirely completed presenting my document book Felmy No. VI. From that volume I should like to present the last four documents and I should like to continue on page 40. Page 40 in Volume VI.
I beg to present Felmy Document No. 133 which is offered as Exhibit 129. It is an affidavit given in English by a former captain of the British Army John Lodwick who says, initially, that he was a member of the Special Boat Squadron (Commando) -- in other words, a special commander.
The second paragraph of the affidavit reads as follows:
"I was taken prisoner, together with my Sergeant, Raymond Nixon, on the night of 23/24 July 1944, near the village of ALIKIANOU, in Crete. The occasion was the Attack by my unit of several widely dispersed enemy petrol dumps in Crete. My Sergeant and myself were the only prisoners made by the enemy, and indeed the only casualties suffered by my unit.
The Germans, on the other hand, lost , besides a great deal of petrol, 16 killed and about the same number of their troops wounded. In the area in which I was myself operating 2 Germans and I Italian Fascist were killed."
I Should then like to continue from page 41, the third paragraph: "On reaching Athens, on 25 August 1944, we were lodged in the Averoff Prison. There we were visited, within a day of two by Franz Borsdorff, whom I understand to have been an interpreter upon General Felmy's Staff.
"Borsdorff having declared publicly (that is to say before other Germans) that our situation was exceedingly grave, later visited me in my cell and declared that he would do everything possible on our behalf, He explained that a High Command order existed, under the terms of which, we should have been shot long before; but that this order had been circumvented, and would continue to be circumvented.
"In support of this statement, Borsdorff pointed out to me five or six other Englishmen, also in the Averoff prison. Several of these men were known to me; some personally; some by repute. All had been prisoner longer than myself. All were still alive, in spite of the fact that some had been captured with the Greek Guerrila forces. All are still alive to-day. If the Prosecution would like a sample name I offer Sergeant Dryden, of my own unit, captured in Kalymnos, June 1944.
"We were treated with humanity in the Averoff prison. In the perfectly legitimate interest (from his own point of view) of obtaining a Statement from me, Borsdorff even took me to lunch at his depot. As Borsdorff now knows the statement obtained from me was almost entirely false, for I was most anxious to conceal that I had ever been parachuted into France(January 1943). Borsdorff's methods were not coercive. Nor were those of his Colonel, to whom he introduced me.
I formed a high opinion of both these men, whom I now know to have been upon General Felmy's staff."
The next document, if the Tribunal please, I would like to offer Document No. 134 on page 44. It is offered as Exhibit 130. This document is an affidavit given by Professor of Archeology Roland Hampe, and I shall read from the second paragraph.
"In the autumn of 1944 two conferences took place between the former Commanding General of the IXVIII Army Corps, General of the Airforce Felmy and the Archbishop Damaskinos. Both conferences took place in Felmy's Staff building at Athens-Psychiko, the first one according to my memory early in September 1944, the second one a few weeks later. I acted as an interpreter for both conferences, my rank was a Master Sergeant of the Reserve.
"I do not possess any notes on this conference and therefore can only state what remained in my memory about the contents without pretending completeness. Since during the conferences I was strongly absorbed by the job of interpreting I am in no position to relate the discussion in the order in which it took place or much less can I give a word by word report. As regards the contents I do remember well what I am stating in the following and under oath:
"Both conferences concerned the fate of the city of Athens during the last critical weeks of the occupation period. The Archbishop was worried lest the Germans would destroy vital installations, while retreating from Athens, especially the Dam at Marathon. This dam supplied all Athens with water.
"Felmy feared that similar occurrences as took place in Warsaw and Paris could be repeated in Athens, be it through attacks upon the daily decreasing German Troops, be it through fighting of Greeks among themselves, which could force the Wehrmacht to interfere in order to maintain public order.
"The Archbishop broached the question, if the city of Athens could not be declared an "Open town". Felmy objected that in three cases on the Italian front bad experiences had been made with that. In these cases the enemy misused the situation for attacks. Nevertheless Felmy agreed to institute the necessary steps.
"He did not intend to order destruction of civilian installations in Athens. He declared his willingness, in order to demonstrate the good will on the part of the German Army to obtain a peaceful solution, to hand over the Marathon Dam to the care of Greek Security Troops. This was certainly the most important result of the first conference. The dam actually was handed over to Greek Security organs and the daily papers referred to this fact.
"The second conference developed around the question of declaring Athens an "Open City" Damaskinos urged such a declaration. Felmy replied that such a declaration would have to be mutual. Also that the attempts at peaceful surrender are being endangered by attacks by left, radical bands. He demanded of Damaskinos to take a stand publicly against such methods. The Archbishop rejoined that as a church leader, he could not take a partisan attitude. It was his task, constantly to counsel conciliation in the Christian spirit. This he had done emphatically in his last pastoral letter. "Felmy feared that through an eventual approach of further bandforces from Boeotia the Wehrmacht might be forced to establish a front in the north and northwest. This would necessitate a withdrawal from Athens of the last available reserves. This moment would in his view be used by the Communistic and anarchistic elements to seize power in the city and fall upon the middle-class population. Felmy declared his willingness to give advance notice of day and hour of the German withdrawal and to transfer all important points in the city to the regular Greek Security organs, so that no vacuum should develop, which the Communists and Anarchists could use to seize power.
"Furthermore it was discussed that the notion "city of Athens" did not include the outer districts, especially Piraeus. The Archbishop requested to include these districts also. Felmy agreed to that also under the condition that the English would in this case give the assurance for several days not to use the harbour of the Piraeus for troop landings. The Archbishop explained that he was in no position and not authorized to give such guarantees. He could only try to influence the Greek population to behave calmly and reasonably."
Although this second conference resulted in no direct, concrete result, it nevertheless revealed Felmy's resolution to do everything in order to avoid bloodshed and destructions in Athens. That the destruction of vital installations was avoided in Athens was not a matter of course. On the contrary: This had been ordered expressly. At that time there was talk about a "Fuehrer-order", which was supposed to have demanded the destruction of all vital installations in case of withdrawal. This order even was supposed to have carried the mad argument "because during the retreat in France too little was destroyed". I never saw this order. But Felmy dropped a remark in this respect, when I departed from him after the first conference with Damaskinos. When I expressed my horror at such an order, Felmy said approximately: He did not feel like carrying out this order either.
Felmy received no assurance from the British and then decided to declare Athens an "open town" unilaterally. This must have been on the 10.10.1944 according to my memory. The evacuation of the city was carried out according to plan and without incidents, That during the last weeks of the occupation period it was possible to prevent the eruption of a conflict must afterwards appear as a miracle. Because already then the same gun-powder was flying around which after the liberation of Greece in December 1944 led to those frightful, bloody events in Athens. Concerning the attacks on German troops by leftradical bands, mentioned by Felmy during his second conference with Damaskinos, one case remained clear in my memory; because it almost nullified the endeavours for a peaceful solution. On the road AthensDaphni near the Pyritidopeieion (powderfactory) a retreating German unit was suddenly attacked by Infantry fire from a settlement. A counter-attack was attempted but repulsed. Only after anti tank guns had been brought up the settlement could be taken. I myself read the battle report of the unit concerned.
This incident demanding victims on both sides became the more grave, as big placards were posted on street corners in Athens carrying the heading "Ist Army Group" (A Soma Straton). In it the attack at the powderfactory was praised as a heroic deed of an Elas-unit.
The conclusion was drawn from the incident that the Elas-troops were the only liberators of Greece.
I then just happened to be in the city and went to see Herr F. W. Herzog, editor of the "German News in Greece". He received me with the words: "Do you know already?" I: "No, what?" He related to me that he just heard that in the fact of this newest provocation the Chief of Staff, Goerhardt, was about to issue an order, according to which the headquarters of the Communist bands in the city-district of Pankrati should be levelled to the ground by artillery. It was clear to us that such a bombardment would effect innumerous civilians and that everything had to be done to try to prevent this. We decided that Herr Herzog should warn the Greek families in Pankrati and ask them to seek safety. I myself returned immediately to Psychiko to see Gen. Felmy.
While on my way to Psychiko I once more pondered the reasons. which I should have to put forward. It was clear that artillery fire would cause many bloody victims among the civilian population. In the immediate neighbourhood of the danger zone lay antique monuments like the temple of the Olympic Zeus. It was to be feared that the planned artillery fire would cause general chaos and that this would have unforeseeable consequences, yes that even the Akropolis might be effected in such a case. (The tragic events after the liberation of Greece in December 1944 have borne out these apprehensions only too well). Finally it could be assumed that by the firing on Athens one would put an odium upon oneself, which for centuries could not be washed away.
In Psychiko I was admitted to Felmy after a short waiting and advanced my misgivings. He listened to me and said that he shared my opinion and that the order that was placed before him should not be carried out. Felmy decided to compose a pamphlet, which should have a calming effect. The pamphlet was rained down over Communistic city districts by a JU 52.
This is all that I can remember for sure. Thereby I did not try to bridge gaps of memory by constructions.
The official contact that I thus had with the former Gen. of the Airforce Felmy causes me to give the following characterization of his personality: sparing with words, simple in the way of living, judiciously minded, not a National Socialist, full of reverence for classical Hellas, high feeling of responsibility for the welfare of his troops. Sympathy for the fate of the Greek civilian population could be felt from his utterances. That Felmy should at an earlier time have caused violent measures against. the Greek civilian population, I cannot imagine on the basis of my experiences with him.
The next document, if the Tribunal please, which I would like to offer is Document Felmy No. 135 on page 49, offered as Exhibit 131. This is an affidavit by F. W. Herzog who was mentioned in the last document. He was the editor of the German News in Greece. I should like to read some of this affidavit, second paragraph.
From the autumn of 1942 until October 1944 I was working in Athens as feuilleton editor of the "German News". That newspaper owed allegiance neither to the Wehrmacht, nor to the Propaganda Ministry. The censorship, as practised in every occupied country, was carried out first by the Italians and after the fall of the Fascist regime by the Germans. I myself was, after my discharge from the German Wehrmacht, free as a civilian and independent from any tutelage and tried, in my professional work, to live up to that independence. My testimony about General Felmy refers only to the last weeks before the liberation of Greece. At that time the other editors of the paper had already left Athens, so that the responsibility for carrying out the undertaking and the care for the Greek workers fell upon me. The evacuation of Greece was in full progress, postal communications with Germany were interrupted, i.e., cut off. All important offices (Military Commander, Legation, Field and Town Commandatura), were in a process of disintegration. Under these circumstances it came about as a matter of course that the discussions about the fate of the newspaper and its workers had to be conducted with the Chiefs of the combat forces, i.c., with the Commanding General of the LXVIIIth Army Corps.
I got in personal contact with Felmy twice in those weeks at the end of September and the beginning of October 1944. During the last days of September I called on General Felmy in his Staff quarters in Psychiko, in order to ask him, for how long a time the paper might be kept going. Moreover, I asked him to give me his opinion about an instruction just received from Belgrade to the effect that the paper with all its technical installations should be destroyed when Athens was evacuated. For us, however, it was most important to hand the whole plant back to its Greek owner fully unscathed. Felmy approved of our point of view, and ordered Lt. Arntz, the head of his propaganda platoon, to remove the explosives that had already been stored on the premises of the publishing house; which was done the very same day. During my conversation with Felmy we then broached the subject of the destructions in general. Felmy told me that he too had received the order to dynamite all essential installations, which he considered senseless. Thereupon, he added, he had sent an officer of his staff to Belgrade, in order to explain his own point of view and to try to get the order cancelled or at least mitigated. Unfortunately without success. An explicit order had been issued by the Fuehrer: there had been too few destructions on the occasion of the retreat from France. This is why thorough work was to be done now in Greece. In view of our objections, that this was plain madness.
And then what he goes on to say in this paragraph is well known to the Tribunal and the next paragraph merely supplements the affidavit I read just now. I should like, however, to read the last paragraph:
"My short personal meeting with General Felmy don't suffice to give a picture of his personality. As an adversary of any uniform I always had first to overcome a certain deep rooted diffidence, whenever I approached an officer.
In the case of General Felmy, however, I felt at once attracted by his warm sincerity and humanity, which confirms what I had been told by a number of his soldiers who called at my paper with all sorts of wishes, namely that he was no Nazi, that his sense of justice was incorruptible, and that he cared not only for his troops, but also for the "Grecos" to the best of his ability. I myself have, during my work in Athens, never heard any detrimental or derogatory remark about Germans neither by the Greeks nor the Germans."
And the last document in this volume, if the Tribunal please, I should like to offer Felmy Document 136 on page 52. It will become Exhibit 132. This affidavit was given by the then Welfare Minister and Minister of Education Nikolaos Louvaris. He has given this affidavit in the German language. Louvaris states first what he knows about the negotiations shortly before the surrender of Athens and the evacuation of Greece.
And on page 54 he says under paragraph 6:
Court No. V, Case No. VII.
I saw and spoke with General Felmy personally - in September 1944 I did so (or August) - in the suburb of "Psychico" where he lived, and for the following reason:
Dr. Loos - not known to me - a higher official of the Balkan Gestapo, having come from Belgrade where he was stationed, visited me in August 1944 and talked to me about the plan and intention to surrender the city without a struggle to the British, and suggested that I should discuss it with General Felmy; but on condition, that I should mention it to nobody. The next day he repeated what he had said in my house before the following persons: The Bishop of Jiannina, the ex Minister and present member of parliament B Sajias, Colonels B. Petropolos and Georgepulos among others, and begged us to go together to General Felmy who knew all about the matter. We did that the following day at 11 a.m.. The General recommended me urgently to dispatch someone to Cairo to convey his suggestion about the surrender of the city without resistance, to English-Greek competent circles. I proposed Herr Philon, King's Administrator to which the General agreed. Soon after, I visited Herr Philon, and through Major Kalligeris who was employed in the Intelligence Service, informed the English Authorities in the near East of the Felmy proposal at the same time. The next day, the German charged affairs Herr von Graevenitz, informed me that I was being charged - obviously by the SS - with a "new conspiracy" against Germany, the corpus delicti being my agreement with General Felmy and the intended dispatch of Philon to Egypt. Towards midday of the same day I asked the General if Philon had already left. I told him what the legation had said to me and assured him that nevertheless I would do my utmost so that Philon might go to Egypt. Two days later Herr Stadtmueller visited me in the Ministry of Education and declared that he was ready to go to Egypt himself, that the General had agreed to that and that he wished to go there on a British submarine. The replies from Egypt, however, to our telegrams, in the meantime made a journey to Egypt superfluous, for according to them, Court No. V, Case No. VII.
contact between, the British and General Felmy was already under way. From the words of the German diplomats and from Neubacher's anger when he learned of my understanding with General Felmy, it became clear to me that there was no unity as to the fate of Greece among the different German military authorities. It is possible that this dissension was the result of the cut and dry order which I did not know of as already said.
What is reported above is a proof for me that General Felmy was sincere in his intention to avoid senseless disturbances and unnecessary blood-shed. It is self evident that through his measures the Greek civilian population was rendered a great service."
If the Tribunal please, this brings me to the end of the Felmy Document Book No. 6. After compiling that book, there are only another two affidavits which have reached me which I shall submit. Solely apart from that I shall submit as a last book, Felmy Document Book No. 7, which so far I have not been in a position to offer. Most of the documents in that book are extracts from Greek newspapers, which the Tribunal has allowed me to use at the time and which were sent here from Athens. The gentleman in charge of the Translation section has promised me, having eventually found somebody to translate this from the Greek, that I shall receive the translated copies in the very near future.
DR. LATERNSER: If the Tribunal please, in the course of this trial I have so far examined my client Field Marshal List and some witnesses, but I should now like to start presenting my documents. I have submitted eight document Books, Nos. 1, 2, 3, 4a, 4b, 5, 6 and 7. They are already in the translation. I should like to remark first that the pagination in the German and English document books is identical. As I present these documents I shall submit only a few loose documents to the Court.
Unfortunately, if Your Honors please, I must start by making corrections to which I beg to draw the Court's attention. There is Court No. V, Case No. VII.
in document book 1 on page 7, document No. 165, but that should read 16.
On Page 46 of Document Book 1 we find No. 164, but it should read 166.
THE PRESIDENT: What was that page again, Dr. Laternser?
DR. LATERNSER: On Page 46 and the document number should not be 164, but 166. May I remark here, Your Honors, that in the German document book the numbers are listed correctly. On Page 59 the document No. 104 should be added. And on page 60, the Number LI-104. should also be added. On page 101 we find No. 27 in the English, but it should read 27-F. And on page 111, the number should not read 111, the document number should be 117. Then there is one correction in document book 2 on page 7, the number should not be 135, but 35. It is on page 7 of document book 2. It is not document No. 135, but 35.
THE PRESIDENT: The document listed in my book here gives Document 137 on page 7.
DR. LATERNSER: I have compared the pagination there, on page 6. It should read instead of 135, No. 35 on page 6.
THE PRESIDENT: In the book that I have page 6 lists document No. 35, That is correct, is it? Now what is the correct number?
DR. LATERNSER: If it says No. 35, then indeed it is correct.
THE PRESIDENT: Then, as to page 7, what is the correct document?
DR. LATERNSER: On page 7 it should also read No. 35. In document book 3 on page 2, it should not read 150, but 150a. On page 44 in the same book No. 151 should also read 151a. And finally on page 57 instead of 152, it should read 152a. And then there is one final correction in Document Book 4a. Document 201 on page 91 in the first paragraph of that document in the third line of the text, it should read in the negative, it should read: "The organization of the commander of the Wehrmacht in the Southeast does not seem to be Court No. V, Case No. VII.
generally known."
These are the corrections which I wanted to make.
If the Tribunal please, the question that Field Marshal List is still a prisoner of war or whether he is not should be cleared up. I want to prove that the Field Marshal is still a prisoner of war. For that purpose I offer first document LI-340, which may be found in Document Book 6 on page 13. This is offered as Exhibit No. 1. This is an application addressed by me to the International Military Tribunal and it reads as follows:
"Nurnberg, 1 May 1946." It says on the left: "Attorney-atlaw Dr. Hans Laternser, Attorney-at-law Dr. G. v. Rohrscheidt, Counsel for the Group, General Staff and OKW."
MR. FENSTERMACHER: May it please the Tribunal, I should like to object to the admission of this document into evidence for these reasons. In this letter to the International Military Tribunal, Dr. Laternser protests against the type of treatment which is being given to the various generals, who are held in custody. That has nothing to do with this case. The same generals who were held in custody during the I.M.T. proceedings are not here involved. I submit this is completely irrelevant.
DR. LATERNSER: If the Tribunal please, I think this document is of decisive importance because it is the reply given to that letter that is of greatest importance. I have asserted in my letter to the International Military Tribunal that the Generals are still prisoners of war and should therefore be treated according to the Geneva Convention, because that was not the case at the time. The reply by the International Military Tribunal, contained in the same exhibit, shows unequivocably that the International Military Tribunal took the view that the status of the prisoners of war must not be changed because of the fact that they were as witnesses in Nurnberg. I also want to prove and shall prove that because of these applications, Field Marshal List, for instance, was released from being a prisoner of war.
Court No. V, Case No. VII.
This is a loose document which I shall submit later. This whole set of problems can only be understood and particularly so the reply by the International Military Tribunal, if the application will also show and become part of the exhibit. I therefore request the admission of these documents in any case.
MR. FENSTERMACHER: If Your Honors please, no matter how the prisoners were treated at the time of the International Military Tribunal, this has nothing to do with how these men are treated now. I submit the whole matter is completely irrelevant to this proceeding.
THE PRESIDENT: This Tribunal is not concerned with the question of treatment, it is concerned with the status of the prisoners and any information which may bear upon the question of their status, not their treatment, is a matter in which we are interested. The exhibits will be received for such probative value as the information therein set out will be of aid to the Tribunal. We are conscious of the fact that no statement made by an officer, who is not authorized perhaps to bind anyone can bind the Prosecution or this Tribunal in this case, but to such extent as it can give information as to the status of the prisoners, the exhibits will be received. You may proceed.
DR. LATERNSER: If the Tribunal please, I must say I am only interested in the status and this is the only reason why I offer the document, I shall now read it:
"Nurnberg, 1 May 1946. To the Secretary General of the International Military Tribunal, Nurnberg:
At the request of some of the generals now confined in the prison of the Nuernberg Military Tribunal as members of groups or as witnesses for the war criminal trial, the defense counsel for the group "General Staff and OKW" respectfully submits to the Military Tribunal the following material for its information and for the elimination of the violations represented herewith against the Geneva Convention concerning tho treatment of prisoners of war of 27.3.1929.
The Defense believes that it can derive its justification for this step from its appointment as legal representatives of the accused group to which these generals belong, or for which they may come into consideration as witnesses if the occasion arises.
The Defense bases its procedural and substantive statements on Article 42 of the Geneva Convention.
The Defense is convinced that the provisions of this agreement have a full and unrestricted application to the interests of the generals here in custody as prisoners of war (Art. 82), since up to now the agreement still exists and is binding on the victorious nations who participated in the Convention even with respect to Germany, and for the time being military hostilities have been conclude only by an armistice (Art. 83).
Furthermore, this opinion is also confirmed by the repeated statements of the American Secretary of War and the British Foreign Secretary on the application of the provisions of the Geneva Convention to the treatment of German prisoners of war.
Since the generals are in the custody of the local military prison which is under the orders of the International Military Tribunal, the Tribunal ought to have jurisdiction for this petition and the measures subsequently required by it. Otherwise it is requested that this application be forwarded to the competent superior military office.
1.
It might first be pointed out that most of the generals here in prison have already been prisoners for almost one year and have been in custody here since about the middle of October 1945, and hold very high or high military ranks and are in an advanced age. As a result of their long imprisonment and several months in custody their mental and physical condition has been more or less strongly prejudiced.
It must further be emphasized that these generals, insofar as they were not brought here merely as witnesses, are from a legal point of view not defendants even as members of the group "General Staff and OKW", so that for them, apart from the fact of their being prisoners of war, there is no legal provision whatsoever for their being lodged in a prison and for the application of the rules which are valid in this connection.
As a matter of fact, however, the generals are regarded as defendants in this trial or similar to convicts, as the treatment accorded them shows. In the eyes of the guard personnel they are considered especially guilty and dangerous persons and are placed on a level with the civilians lodged in the same wing of the prison building who are charged with criminal offenses, since indeed the military guards are not acquainted with the circumstances or cause of the generals' confinement.
The fact alone that they are staying in the prison of a military tribunal must result in their getting the same treatment which is accorded to prisoners in general, since for reasons of prison discipline and organization any treatment different from that given the other prisoners seems hardly possible. The confinement of the generals in a military or civilian prison, whether as members or only as witnesses for the accused group is not at all permitted as a matter of fundamental principle according to Article 9 of the Agreement. This provision permits prisoners of war to be kept in a prison only as an indispensable security measure and even then only temporarily for the duration of the circumstances which make the measure necessary.