In the latter connection he said that in order to deceive the OKW, many partisans were reported to be "temporarily arrested". Kuntze says that the High Command assumed that these people were to be shot, whereas in fact they were not. As at least four documents introduced here show that persons in the temporary arrested categories were shot in large numbers, we are inclined to doubt that there was any such deception.
Kuntze also denies that the Army had anything to do with the Jewish extermination program or with the institution of concentration camps, As time and again in his reports we find references to the number of Jews in concentration camps mentioned alongside the figures showing the number of hostages and reprisal prisoners being held, Kuntze' memory appears to be wholly unreliable.
So far as the Commissar Order is concerned, we have introduced a report made by the Field Gendarne Squad attached to the 61st Infantry Division which was subordinate to Kuntze's 42nd corps in Russia. This report enumerates the execution of 18 commissars and politruks over a two-day period alone. The rest of the report is riddled with references to the shootings of additional commissars and politruks. Kuntze, of course, says that his commanding general had instructed him, in spite of the Commissar order, to treat captured commissars as prisoners of war, and that he in turn instructed his subordinate units to the same effect. The reliability of the report as opposed to Kuntze's credibility is the issue before the court on this point.
If the guilt of these men is to be measured by mere statistics, it is true beyond question that Kuntze has the blood of more innocent people on his hands than any defendant in the dock.
FOERTSCH AND GETTNER We turn now to the defendants Foertsch and Geitner.
It is natural to consider them together because within their respective commands they occupied identical positions.
Both were Chiefs of Staff and both attempt to base their defense mainly upon the nature of the powers, duties and responsibilities which were the concomitants and appurtenances of the position of chief of staff. Of all the defendants in the dock these two men stayed longest in the Southeast. The three men who held the position of Commanding General of the 12th Army were List, Kuntze and Loehr. The 12th Army was succeeded by Army Group E and Army Group F commanded by von Weichs. Foertsch was Chief of Staff to all four of these men, which is to say that he occupied the position of Chief of Staff to the highest authority in Greece and Yugoslavia from the beginning of the German occupation until March 1944. It was through him that continuity in the policies of the German Army in the Balkans was preserved.
Geitner occupied the corresponding position on the staff of the German Commanding General in Serbia and later the Military Commander Southeast. He went to Serbia in July of 1942 as Bader's Chief of Staff and continued to serve under Bader's successor, General Felber, until October 1944.
We have already given a few examples of the crimes which were committed in Serbia and Greece during the reigns of List and Kuntze. It is our position that the blame for these murders ought not to rest altogether on them but should certainly be shared by their Chief of Staff. By asking the court to give Foertsch part of the credit for these occurrences, we do not feel that we are causing List and Kuntze any real deprivation. There is enough crime to go around.
Further, it would be unfair not to give Foertsch, the tactical and political high priest of the Southeast Command, some of the credit. We have mentioned the various orders which List and Kuntze either wrote or passed on to their subordinates. Foertsch had a hand in almost every one. He actually forwarded the Keitel order of 28 September 1941, which decreed that persons from all walks of the population be arrested as hostages and shot in the event of hostile actions against the occupation power.
He passed on the OKW order of 7 February 1942 which demanded that fewer partisans be taken prisoner and that brutal police measures be used to break the backbone of the insurgent movement. He advised Kuntze to issue the order of 19 March which has already been mentioned -- the one which stated that it was preferable for 50 "suspects" to be liquidated than for one German soldier to be killed, -and after he had prepared the draft which Kuntze signed, it was Foertsch who passed the order on.
But his activities continued, of course, long after List and Kuntze had departed. It is unnecessary to recapitulate the text of the infamous Commando Order of 18 October 1942. Foertsch passed this on to the subordinate units and ten days later drafted and initialed a supplement to it which General Loehr then signed. When Foertsch originally described this supplement on the witness stand, he said that it in effect countermanded the Commando Order. At that time the document itself was not in evidence. Then a photostatic copy of the supplement was shown to him on cross-examination. He then said that the supplement had no reference to the Commando Order whatever but only applied to the partisans, despite the fact that it sets out in black and white that the method of warfare employed by British and American commandos is unlawful and that those who engage in it are not to be regarded as members of an armed power. No paraphrase could do justice to the vicious language which Foertsch employed. Nor could anything we say about the credibility of his testimony be as damning as a comparison between the actual contents of this order and the explanations which its author gave of it on the witness stand.
Foertsch contends that the Commando Order was never even intended to be carried out in the Southeast and that he went out of his way to advise the commanders of subordinate units to treat captured commandos as prisoners of war.
This is contradicted by the documents introduced during the cross-examination of the defense affiants Colonel von Harling and General Winter, both of whom personally participated in the turning over to the SD of at least three different groups of commandos. Winter, Foertsch's successor as Chief of Staff of Army Group E and later Army Group F, testified that he and Foertsch discussed the question of the treatment of commandos captured during a raid on the Greek island of Alimnia. On 27 April 1944, scarcely a month after Foertsch's physical departure from Army Group F, the Commander-inChief Southeast ordered Army Group E to retain the English radio operator Carpenter and the Greek sailor Lisgaris, captured on the island of Alimnia, for interrogation purposes. The remaining prisoners captured in that particular commando raid were ordered turned over to the SD for interrogation and then final "special treatment", the latter a term whose meaning von Harling's testimony saved from ambiguity. There can be little doubt that tho Winter-Foertsch conversation referred to this very group of commandos. These men, and the many other commandos captured in the Southeast, would never have been murdered if the Commando Order together with its vicious supplement had not been passed on down the line by Foertsch.
So far we have only mentioned acts which were committed by Foertsch in conjunction with his commanding officers, but there is a multitude of iniquities for which he is solely responsible. When General Lontschar was killed in Serbia, Foertsch noted in his own handwriting on the margin of the report, "What counter-measures? Why no hostages in Waljewo?" The burning of Skela and the hanging of fifty inhabitants because they had not warned the Germans ahead of time that a vehicle would be attacked there. This was done by Foertsch's specific order which he gave over the telephone to Colonel von Gravenhorst. The war diary kept at Felber's headquarters contains an entry on 26 November 1942 that the Army chief of staff lead requested by telephone that all mayors who remained passive were to be shot to death.
The report which Foertsch made on 15 December of the same year is still another example of his handiwork. In it he concluded that civilians should be used for the patrolling of railroad tracks and that in case of damage by sabotage the persons assigned to the patrolling measures should be called to account and, if necessary, shot. The report also advises the use of the population "extensively and ruthlessly for the construction of fortifications."
What has been said already about the connection of List and Kuntze with the liquidation of Jews, concentration camps, and the activities of the Rosenberg units applies oven more strongly to Foertsch. It is conceivable perhaps that List or Kuntze were not aware in detail of all the happenings within their area of command. But for a Chief of Staff to plead lack of knowledge is tantamount to an argument by him that he deliberately neglected his duty. It was his business to know the intelligence officers and operations officers who were his immediate subordinates. If Foertsch had been inefficient or ignorant, he would not have remained as Chief of Staff from 1941 until 1944 and have been successively promoted from Colonel to Major General.
It is most significant that Foertsch never once criticized Boehme or Bader to his commanders-in-chief and that he never recommended that any disciplinary measures be taken against Stahl or Buebler or any of the other divisional commanders whose troops had engaged in those murderous orgies. Indeed, it would have been completely incomprehensible for him to have criticized them for having allowed or ordered their troops to do what Foertsch had unceasingly counseled and recommended.
Before we discuss the defenses which Foertsch attempts to use, let us first look at the evidence against Geitner, his counterpart in Serbia. We have already described the bestialities committed by the German troops in Serbia under General Bader. They were continued after Courts 5, Case 7 his replacement by Felber.
Geitner was Chief of Staff to both. The evidence shows that during this entire period, hostages were being killed regularly in numbers based on the standard ratio of 50-to-1 and sometimes 100-to-1. At the same time, villages were being burned, captured partisans shot, partisan suspects thrown into concentration camps and the relatives of partisans given the third degree. The documents show that Geitner interested himself in the management of the Semlin concentration camp, that he requested an increase in the deportation of Serbs to Germany, and was present at conferences on the so-called Croatian labor recruitment program.
The carnage that went on under the aegis of Bader and Geitner is almost indescribable. The orders which they issued excel in brutality even the directives of the OKW. They ordered, for example, that the established reprisal quotas for dead and wounded should be extended to missing German soldiers. Later, the ratios were also applied to Serbian civil servants, although since a Serbian life was less valuable than a German life, the ratios were naturally smaller; only ten hostages were to be executed for each Serb killed and five for each wounded.
Generally, the philosophy behind hostage executions was that if the actual perpetrator of a hostile act were not apprehended, other people would be punished in his stead. Geitner and Bader, however, passed beyond this. For example, on 4 December 1942, two officers were fired upon and wounded by a 20-year-old woman who later shot herself. In spite of the fact that the assailant was known, the division to which the two officers belonged obtained authority to execute 50 hostages in reprisal. When one of the officers later died, they obtained permission to shoot an additional 25 hostages.
The ferocity and obvious senselessness of such measures, from a deterrent standpoint, can only lead one to believe that so far as Geitner and his commander were concerned, the main object of these killings was simply to thin out the Serbian population upon any or no pretext. Geitner himself in an unguarded moment on the witness stand admitted that the main purpose of these executions was vengeance and the extermination of the Serbs.
It goes without saying that Geitner's initials appear on almost all of the orders and reports concerning the carrying out of reprisal measures. One order dated 5 January, 1943, directs that 35 hostages be shot in retaliation for the killing of two village elders and a Serbian border official and for the wounding of a civil servant. Geitner's name is signed to this document. A week later Geitner initialed another order approving the execution of ten hostages for the murder of a Serbian mayer. The citation of further examples could go on almost indefinitely.
Geitner could not even remember the Commando Order but he was absolutely positive that no commandos were ever executed in the Southeast. This must have been an accidental lapse of memory because the proof shows that on 22 May 1944, five British soldiers captured in the course of a commando operation on the Adriatic island of Oljet were turned over by the Army to the SD in Belgrade. The documents which we introduced as Exhibits 651 and 652 make it quite clear that these men could only have been handed over to the SD on orders of Geitner or Felber.
So much for the evidence against these men. We how turn to the defense on which they rely most heavily, the argument that it is legally erroneous to hold a chief of staff criminally liable for acts committed by troops subordinate to the staff. The duties of the chief of staff, they say, are purely ministerial in nature. He is, in fact, nothing more than a combination secretary, proof-reader, office boy and postman for the commanding officer. It is evident as one considers their testimony that any normal 14-year-old boy could have performed this function as well as anyone else, and one wonders at the outset how the German Army could have been so improvident of its money, manpower, and brains as to waste a person of the rank, experience and intelligence of Foertsch and Geitner on such unimportant assignments.
Having established their insignificance and having deprecated their tasks almost to the point of non-existence, they say that it would be a monstrous injustive for them to be allotted any of the blame for the orders which they drafted, for the orders which they signed, for the orders which they read, corrected and initialed, and for the part which they played in seeing to it that these orders were carried out. This necessitates a brief analysis of the powers and duties of a chief of staff in the German Army and his relationship to his commanding officer.
Prior to the Hitlerian era, a chief of staff in the German Army occupied the status of an absolute equal of the troop commander. The most powerful group within the German Army were the members of the General Staff Corps who over a period of years had entrenched themselves as a corps d' elite which had arrogated unto itself powers which were almost unique. The amazing result of such a development was that a chief of staff whether he was attached to a corps, an army or an army group could take exception to anything that the troops commander did, whether it dealt with strategy, tactics, or basic policy; and in case the two could not reach agreement, the chief of staff could take an appeal through a separate channel of command to the Chief of the General Staff of the entire German Army.
This situation continued until 1938 when Hitler, jealous and afraid of this military oligarchy, stripped the General Staff of these extraordinary powers and decreed that the final decision on the issuance of orders in case of a disagreement with his chief would rest with the troop commender.
It is this change in the status of the chief of staff upon which Foertsch and Geitner rely in their effort to exonerate themselves from the charges brought against them here. That the effect of this change was not nearly so radical as these defendants would have us believe is clearly shown by the Rote Esel, or "red donkey", the familiar handbook for General Staff officers which was issued after the change was made. It roads in part:
"At the head of the Staff stands the Chief of the General Staff. He is the first counselor of the Commanderin-chief in all fields. Close relationship and confidence between both are indispensable as an enduring basis for the beneficial labor of the commanding authority.....
"The Commander-in-Chief has to listen to the Chief of the General Staff, if instant issuing of commands is not necessary, before operational and tactical decisions are made. The Chief has the right and the duty of presenting his point of view and making suggestions.....
"The Chief of the General Staff examines all drafts before they are presented to the Commander-in-Chief."
Further, even though the purpose of Hitler's decree was to do away with the command function of the Chief of Staff, even this was not fully achieved, because the handbook went on to say:
"Simultaneous absence of the Commander-in-Chief and the Chief of the General Staff from the command post should be avoided. If the situation demands a quick decision and the Commander-in-Chief is absent and not to be reached at once, the Chief of the General Staff is required to decide and command....
"Except concerning those soldiers senior to him, the Chief of Staff of an Army Group or an Army has the disciplinary powers of punishment of a divisional commander, the Chief of Staff of a Corps, that of a Regimental commander."
It frequently happened during World War II that a German Chief of Staff would issue orders on his own initiative during the absence of his commander. An example of this kind was discussed during the cross-examination of General Dehner whose Chief of Staff had issued a rather basic and general order concerning the combat of partisans while Dehner was on leave.
We have already mentioned that the Chief of Staff was in change of the administration of intelligence and operations. He received reports from subordinate units; evaluated the enemy position and strength; outlined strategy; suggested, drafted, signed and distributed orders; and forwarded the reports from subordinate units on to higher headquarters. He called conferences of the various commanders; consulted with military, political and diplomatic representatives; and helped to formulate basic policies for the military and civilian administration of the occupied territory. It was a rare commander indeed who was egotistical or reckless enough to make an important decision without first consulting with his Chief of Staff.
The General Staff bible, to which we have already averted, states that a Chief of Staff must feel the pulse beat of his unit at all times and that he be "distinguished by clear creative thinking and logical behavior, determined energy, untiring working power and self-discipline, and physical freshness". These are rather high standards to require of a combination secretary-messenger boy.
We can easily see from Foertsch's own literary production, "The officer of the New Wehrmacht", how likely it was that he restricted his activities to the licking of stamps and the dusting of desk-tops while Chief of Staff to the most powerful men in the Balkans.
In that book Foertsch wrote:
"Soldierly leadership rests on the joy of responsibility. It is one of the finest but also one of the most difficult virtues of a leader. The greatest enemy of true leadership is anonymity. This appears in various forms; at times in the nameless authority of an office, i.e. in bureaucracy; at times in the conscience crawling behind a higher order, law or regulation; at times in the attempt to deny 'responsibility' in the event of failure in a given act."
Since the whole theory of the guiltlessness of the Chief of Staff is based upon a variation of the superior orders plea, the irony in this passage is particularly pointed.
What has already been said should be enough to demonstrate the incongruousness of arguing that because a man was Chief of Staff he ought to be exonerated of all responsibility for the orders which his Commander issued, particularly when he had a hand in their making and at times even issued them above his own signature. Field Marshal Keitel made the same argument before the International Military Tribunal. Keitel was Hitler's Chief of Staff and he testified that as such it was his duty to express his opinions regarding matters upon which Hitler proposed to act. Jodl was Hitler's Ia or operations officer.
Just as the operations officer served as deputy for the Chief of Staff when the latter was away from headquarters, so Jodl acted as Keitel's deputy during his absences. Both men made contentions similar to those being advanced by Foertsch and Geitner here.
Both were convicted and sentenced to be changed. So far we have not Foertsch and Geitner on their own ground. Actually all this legalistic quotation of the "Rote Esel" is completely wide of the mark under the provisions of the Allied control council Law No. 10 as far as a defendant is a, substantial participant in the commission of a crime whether he is -- I shall better start from the Beginning: We can meet Foertsch and Geitner on their own ground so to speak in dealing with their arguments. Actually this legalistic -- do you not have the script. It was handed to you or your colleague. I will go slowly. Actually allot this legalistic refinement, all of this quotation of the "Rote Esel" this argument about the meaning of German Internal is wide of the mark: Under the provision of Control Council Law 10 so long as the defendant is a substantial participant in the commission of a crime, whether he is classified as a principal, an accessory or one who took a consenting part or one connected with plans or enterprises involving commission recognized as a criminal. The close connection of Foertsch and Geitner with those crimes is divided. The crimes were carried out by their orders without their commanders being aware of them. This is the ultimate answer.
So far we have just discussed the argument which is common to the defense of Both of these defendants, but Geitner evolved a theory which was a refinement on every previous description of the function of a German military staff that we have ever heard. According to him, the staff was divided into two parts, one of which was concerned with tactical matters and the other with purely administrative affiars. He contends that he was only chief of the tactical staff. The tasks of the administrative staff were not described. Even if this dichotomy had in fact existed outside of Geitner's agile mind, it is difficult to see what difference it would make since Loehr's orders of 10 August 1943 explicitly stated that the carrying out of reprisal measures are "not matters of administration but rather measures of combat."
But Geitner attempted to complicate matters even more. He refers in his testimony to some un-named lieutenant who was a legal expert and who was solely responsible where reprisal measures were concerned.
This fictional creature was supposed to be a member of Geitner's staff and subordinate to him, but he kept a private pipeline to Bader and Felber for the transmission of affairs concerning hostage executions and the like. This fairy tale is not mentioned because it requires any refutation but because it would be almost unfair to let Geitner's inventive fertility pass unrecognized. It seems perfectly logical to us that General Bader should have used his Chief of Staff merely to correct his spelling errors and sharpen his pencils while he sought out some lieutenant to act as his adviser and collaborator in carrying out reprisal measures throughout Serbia.
THE PRESIDENT: Does that complete a division?
MR. RAPP: No, your Honor, I have one more page.
THE PRESIDENT: You may complete the page.
MR. RAPP: The measure of responsibility which the German army considered a chief of staff for the conduction of his troops could not be better illustrated than by a letter sent by the 15th Mountain Corps to the SS Division Prinz Eugen shortly after the Italian capitulation. This letter was later after the decision had been made to shoot officers of Italian units who refused to allow the Germans to disarm them - this letter passed on a comment made by the 2nd Panzer to the following Army effect: Main culprits and accomplices are to be shot to death. Accomplices generally are: all the commander and general staff officers.
Geitner also developed another explanation which ought not to pass unnoticed. When report after report and order after order concerning the Serbian butcheries all bearing Geitner's signature were produced for his comment, he came forth with the bland explanation that they were false. He said that the German officers in Serbia disapproved of the blood thirsty attitude of the OKW and decided to circumvent its harsh directives by reporting imaginary executions. Aside from pointing out that the Fischer affidavit demonstrates the complete absurdity of this contention; that Geitner was unable to point to a single specific example of a mock execution in all of the reports shown him; aside from the fact that Geitner's testimony was contradicted by General Felber who, one would think, has every reason for clutching at any straw himself; and that one of the conspirators named by Geitner in this scheme was SS-Obersturmfuehrer Dr. Schaeffer who had borrowed a gas van to exterminate the Jews in Belgrade, we are at a loss to know how to answer this defense.
It is impossible to take up all of Geitner's defenses, but his arithmetical explanation should not pass unmentioned. There is in evidence here an affidavit signed by Geitner's counsel, sworn to before himself, containing long lists of numbers compiled by persons unknown from sources only specified generally. The apparent purpose of the affidavit is to show that the retaliation ratios were 1:6 instead of 50:1. The German losses set out in this tabulation included combat losses of the Germans but not of the partisans. What this is intended to show, aside from the fact that someone had a passion for playing with figures, is more than a little difficult to understand. If the ability to spin gossamer fabrics of fantasy could compensate for a procession of murders that would bring blench to the cheek of a Borgia poisoner, then Geitner would have good reason to be hopeful of his fate. Fortunately the law sees through all such irrelevant talents.
THE PRESIDENT: We will take our noon recess and reconvene at 1:30.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The Tribunal reconvened, at 1330 hours, 3 February 1948.)
THE PRESIDENT: The tribunal is again in session.
MR. FULKERSON: General Lothar Rendulic is several defendants rolled into one. As commander of the 2nd Panzer Army he was the superior of Dehner and von Leyser while they were in the Balkans. But in 1944 he was named Commander-in-Chief of the XX Mountain Army and transferred to Norway. The ruination and misery which he left in his wake in that country's province of Finnmark constitutes a separate chapter in itself. To make for a more orderly presentation, therefore, we discuss first the activities of Leyser and Dehmer, to return later to the subject of their mutual superior.
Croatia was, at least during the period under discussion, divided into three parts or corps areas. In the north was General Dehner's LXIX Reserve Corps; in the center and including most of the coast was the area of the SV Mountain Corps successively commanded by Generals Lueters, von Leyser and Fehn, and in the south was the V SS Corps with which we are only incidental concerned.
General von Leyser was practically suckled on Prussian militarism. His father was a Lieutenant General in the German Army. He was put into a military school himself at the ago of ten, eventually became an officer and stayed in the Wehrmacht until it was reduced to 100,000 men in 1920. Then he was transferred to the police, where he languished until 1936 when he was able finally to go back into the German Army. In describing the unrest in Germany before 1933 and the reasons why he joined the Party, he made a statement which was far more significant than he intended when he said:
"I hoped that in a strengthened Germany which the Party had promised I could take up again my old profession as a soldier, as an officer."
In half a sentence, von Leyser summed up one of the strongest appeals which Hitler had to the members of the old officer class and conse quently one of the principal reasons for the world catastrophe of 193945.
By the time of the outbreak of the war with Russia, he had risen to be a Brigadier General and was the commanding officer of the 269th Infantry Division, which was subordinate to the XXXI Panzer Corps under General Reinhardt. This corps was in the northern sector of the front and in October Leyser's division found itself before the defenses of Leningrad, having swept all the way from the old Russo-German frontier. Leyser was promoted to Major General as a result of this achievement. After participating in the attempted encirclement of Leningrad, his division was pulled out and moved to the Wolchow sector on the shores of Lake Ladoga, where it stayed until von Leyser was transferred from it in August 1942.
We now go back to June 1941, just before the outbreak of hostilities with Russia. The court will recall that the "Commissar Order" was issued by the OKW on 6 June -- at least two weeks before Russia was attacked. Von Leyser said that he first heard about it at a conference of the various commanding generals and divisional commanders of the 18th Army, to which his division had been attached before it was transferred to General Reinhardt's corps. He said, that although he was not shown the order, he was apprized of its contents and that "we generals objected to this because it was against our own feelings and because we did not think this order could be carried out".
The Commissar Order was discussed a second time at a conference of the divisional commanders of the XXXXI Panzer Corps. There, General Reinhardt said that the Panzer troops would advance so fast that there would not be time to sort out the commissars from among the other prisoners and that, therefore, the order would not be carried out, but, rather, every Russian soldier captured would be treated as a prisoner of war and sent back in the customary manner to the rear. Thus, von Leyser said, the order was not even passed on to his division, much less carried out.
He added, however, that even though there was no official circulation of the Commissar Order, it was known everywhere, not only to the Germans, but also to the Russians.
General von Leyser said that the order was not carried out by his division for two reasons. The first was that in view of the speed with which the Panzer troops advanced, it was impracticable for the commissars to be sorted from the other prisoners. It is difficult to see how the separation of the commissars could have taken much time, since they were a distinctive insignia on their uniforms.
Further, the break-neck ract across Russia came to an abrupt halt once the division reached the outskirts of Leningrad in October 1941. Thereafter, its daily advance could be measured almost in meters. Von Leyser himself said, "It was more or less a war of position." It should be remembered that von Leyser remained with the 269th Division for nine months after this "war of position" began. So much for his first reason as to why the Commissar Order was not carried out.
The second reason the order was not executed, he said, was that it was contrary to his own personal feelings. We will go into the question of General von Leyser's personal feelings presently: we believe the evidence shows that it has undergone a radical metamorphosis since 1941.
But it is not necessary to discuss the reasons he gave why the Commissar Order ought not to have been executed. There may have been many such reasons, but the fact remains that on at least three different occasions the order was carried out by his troops. At least, if his troops were not aware that they were carrying out the order, on three different occasions they did exactly what they would have done had they been following it to the letter, and they did not wait long before they began. On 9 July 1941, the Signal Battalion of the division sent the following message to tho headquarters of the Reinhardt Corps:
"34 Politruks liquidated."
General von Leyser conceded that a politruk was the designation for a political commissar. On 28 September, the Signal Battalion reported:
"Special occurrences: 1 female commissar shot. 1 woman who was in contact with partisans likewise shot."
On 20 November, the Artillery Regiment reported that:
"2 Russian prisoners of the First Battery were shot upon order of the Battalion Commander. These were 1 commissar and 1 Russian high-ranking officer."
General von Leyser did not recall any of these incidents. He said that he had no recollection that any commissars were ever shot by the troops of the 269th Division. General von Leyser's memory, in common with the memories of the other defendants, has a chronic tendency to fade out completely whenever he is asked an embarrassing question.
We have said that we would go into the question of General von Leyser's personal feelings, since he has made an issue of them in this case. We deal first with his attitude toward the civilian population of the territories occupied by the German troops. There are three separate books of documents submitted on his behalf. More than half of their contents consist of affidavits submitted by his acquaintances and former comrades in arms. Time after time, those affidavits describe how touched von Leyser was by the suffering which war had visited upon the civilian population, and how considerate, forebearing and sympathetic he was toward them. Here are a few samples of these testimonials "consider him incapable of committing an act described as a crime according to the laws of humanity or the penal code.
This applies to him even more as he has the quality of exceptional sympathy toward a stranger's fate, especially pronounced in his whole family according to my knowledge."
********* "I could give still more examples which show the disinterested and completely unquestionable behavior of General von Leyser, especially his sympathy toward the inhabitants and prisoners".******** again:
-
"The pacification which General von Leyser had in mind could not be accomplished completely ........because his great and generally recognized kindness of heart interfered."
******** It is difficult to believe that this kind and sensitive being, whose heart was so filled with good will toward his fellowman, could have issued and signed the following order on 8 August 1941.
"Hard and ruthless attack by the responsible leaders. Avery consideration and mercy is weakness and means danger. Ruthless prevention of every threat by the enemy civilian population.
"Favoring or aiding partisans, stragglers, etc. on the part of the civilian population is to be regarded as guerilla warfare. Suspicious elements are to be turned over to the Einsatzgruppen and detachments of the SD."
We will have occasion to refer as we go on to the various orders which were signed by Leyser or at least passed on by him. The more one sees of the sentiments which Leyser expressed while the war was going on, the more puzzling it becomes to reconcile them with the feelings which he now professes to have. For example, a few months after he issued the order to which we have just adverted, he had occasion to deal with the question of the treatment of prisoners of war.
On 3 November, the followint directive was issued from his headquarters:
"Commander-in-Chief of the Army has decided that mines, other than in combat or in case there is danger in detail, are to be detected and cleared only by Russian prisoners in order to spare German blood. This is also valid for German mines."
When he was asked about this order, von Leyser's recollection blacked out again, so we do not have the benefit of his explanation except that he attempted to minimize the order in importance by saying that at the time it was issued there were no mines in the sector of his division.
The section of his cross-examination in which this matter was discussed is a classic of double-talk and evasiveness. Von Leyser followed the battle of attrition concept on the witness stand. In order to get him to admit what time of day it was, it was necessary to specify that he was to answer in terms of mean instead of sidereal time and to furnish him with the latitude and longitude of the Palace of Justice.
Aside from the light which it sheds on General von Leyser's personal feelings", this order that Russian prisoners of war should be used to clear mine fields is interesting in another connection. He says that he did not carry out the Commissar Order because it was contrary to these personal feelings. Hour could it have jolted his sensibilities loss to send untrained Russian prisoners of war out on tasks which were adjudged too dangerous for the German sappers? If he issued the order reluctantly and only because he was afraid not to carry out a directive of the Commander-in-Chief of the Army, how was it that he was not haunted by the same fears so far as the Commissar Order was concerned? Is it likely that he would feel obliged to carry out an order issued by the Commander-in-Chief of the Army and at the same time feel free to disregard a Fuehrerbefehl? We submit that von Leyser did not disregard the Commissar Order, that these executions were reported by his division to the Army for the purpose of showing that the order was being obeyed.
We now turn to von Leyser's activities in Croatia. He arrived there in October 1943 but did not take over the command of the Corps Headquarters formally until the first of November. During this twoweek period, he wasted no time. On 20 October he had a conference with three men: Kasche, the German ambassador to Croatia, and two of the Croatian ministers. The subject of this discussion was General von Leyser's authority, and the minutes of the meeting record that at the end "General von Leyser demands concise, unilateral, executive authority in case of an increase of tension in the situation which was conferred to him by the ministers."
The term "executive authority" is somewhat ambiguous and General von Leyser was asked to give his understanding of what it meant. He said that ho would explain it by saying that a man who had it was "Lord, over life and death, if I may put it that way"; that it meant a telescoping of all political and military authority and of all governmental functions -- executive, judicial and legislative -- into one.