MR. RAPP: If your Honors will refer now please to Document Book 18 there was a document offered for identification only on page 91. It was marked as Exhibit 440-A. It is NOKW-611. This is an affidavit from the witness Felber, and in connection with the previous question I have asked the witness, I am now handing him this affidavit to ask him some further questions in regard to the statement he made at that time in this affidavit.
DR. LATERNSER: Your Honor, I object to the intention of the Prosecution to give this affidavit to that witness. I remember that the Tribunal ruled yesterday, subsequent to my objection that it should not be shown to the witness.
THE PRESIDENT: I think, Dr. Laternser, you must be in error as to the Court holding it should not be handed to the witness. The Tribunal has not objected to it being handed to the witness or the witness examining it, and under the ruling of yesterday did restrict it to such questions as would come within the rulings as made yesterday, otherwise the witness would not know what was in the document.
DR. LATERNSER: Your Honor, that is just what matters, what the witness knows and what he doesn't know, and I repeatedly pointed out yesterday that what matters about a witness is the knowledge which he possesses the moment he enters the Court, and that in the direct examination it is a legal basis not to invalidate the probative value of the testimony of the witness, and it should not be possible for him to refresh his memory. Up to now I have taken the rulings of the Anglo-Saxon law as to this, and I don't think I am in error.
THE PRESIDENT: I think the witness perhaps should be asked as to whether or not he did make such a statement and then he may be questioned. The Tribunal is following the thought that this is being presented to the witness for the purpose of refreshing his memory, and is being permitted to be interrogated solely upon that theory.
DR. LATERNSER: Your Honor, may I point out something else. I have no objections as defense counsel that evidence which has already been introduced into these proceedings as exhibits, that those exhibits may be shown to the witness. However, these statements are not yet evidence, and they will never be evidence, because they are statements on a witness who is personally present here. An affidavit of a witness is merely in the shadow of the witness himself, and the value of such an affidavit is dependent on the value of the witness. If the witness does not possess the knowledge any longer at the moment when he is present in Court, and this is evident from questioning, then I cannot strengthen this knowledge in the direct examination, -- I mean if I submit to him explanations and statements which he made a lengthy period ago that does not apply to exhibits which are already received in evidence, but it does apply to evidence which has not yet been received as evidence, and in an observation of the rules of law can never be evidence.
THE PRESIDENT: The Tribunal has indicated its attitude in this matter, and we will proceed along the lines as heretofore stated by myself and as in keeping with the rulings made by Judge Carter yesterday.
You may proceed Mr. Rapp.
MR. RAPP: Very well, Your Honor.
Q.- Witness, this document, is that an affidavit which you made?
A.- Yes, indeed.
Q.- Does it bear your own signature?
A.- Yes, indeed.
Q.- What is the date of the affidavit, witness?
A.- The 8th of January 1947.
Q.- Witness, I would like to ask you merely one question in connection with this affidavit, a question which again concerns your statement of yesterday, that the Commander in Chief Southeast is responsible for the total area of the Southeastern Theatre, and that your task within this as Southeastern area was limited to the security and maintenance of law and order, and furthermore on the administrative work in the Southeastern area.
In your affidavit in January you said "In order to end this unhappy situation a new order was issued in August 1941. The entire control in this area was transferred to the Commander in Chief Southeast, who at the same time is commander in Chief of Army Group F. His main task was of a tactical and strategical nature, that is he had to pacify the Southeast and guarantee for the security of the whole Southeastern area. At the same time a military Commander Southeast was appointed, whose task it was to look after all administration affairs in this area." Witness, your statement now and your testimony of yesterday does not coincide to my opinion; can you make any comments as to this fact?
A.- I am just reading from this affidavit, that it was expressed there whose task it was to deal with all administration affairs. One might assume from this that could be expressed that the Military Commander Southeast had only administrative tasks. However, that would not correspond with the facts. I have repeatedly emphasized that my main task was on the tactical and military sphere, and the security and maintenance of law, and in the Balkan area. My department was mainly concerned with the area of Serbia.
Q.- Witness, who was responsible for the territorial security of the Southeastern area?
A.- I cannot give a clear answer to this because down there in Belgrade we were unfortunately not aware of a clear definition of those authorities. Purely on the basis of orders the territorial measures are a part of the task of the military commander. However, as I previously emphasized the territorial area and operational area geographically coincided. It could be taken from that fact a mixture of the tasks and the responsibility was shared by the Commander in Chief Southeast and the Military Commander Southeast.
Q What is territorial security, witness?
A I understand territorial security is the task to secure the area which is under my jurisdiction and not only against the enemy from outside but also to be responsible for law and order within this particular area.
Q Witness, the last but one page of this affidavit which you have in front of you is an additional explanation to your affidavit. Is that correct, witness?
A If I understood you correctly, you mean the annex to the affidavit?
Q That is correct, the first page of that.
A Yes, indeed. That is an additional explanation.
Q Would you please take a minute and read this?
A I am through.
MR. RAPP: Your Honors, I am referring to page 99 of your document book, page 98 in the German. The witness Felber, under the date of 9 January 1947, has given the following addition to his affidavit of the same date. In my opinion -
THE PRESIDENT: Do you propose to read this supplement?
MR. RAPP: Your Honor, I am not proposing to read this. I am merely trying to cite the paragraph, for the Court's information, that I am having reference to in order to avoid to get into long questions which in itself would have no meaning unless we get the background first. I am reading, in other words, for the record only, not for the purpose of getting it as such admitted into evidence.
THE PRESIDENT: It seems to me if you have a desire or if it is your purpose to refresh this witness' memory on something that he failed to comment upon that you might do that; but to read it into the record would violate the previous instructions of this Court and, in our opinion, the rules in connection with matters of this character. Now, with that I feel you should limit your questions and your examination of this witness in this particular document.
MR. RAPP: Very well, Your Honor.
Q Witness, at that time you said in your affidavit that the official instruction of the Commander in Chief of Army Group F, as far as it concerned tactical questions, they coincided with your own instructions. What is your comment to this today?
DR. LATERNSER: I object to the question. This question is a leading question which is not admissible.
THE PRESIDENT: The objection is sustained.
Q Witness, did you on the 8th of January, 1947, make an additional explanation to your affidavit of the same date?
DR. LATERNSER: I object. That again is a leading question - not admissible.
THE PRESIDENT: I think the prosecutor should be permitted to complete his question and then the Court will be able to rule more fittingly.
Q Did you make this statement and sign it in your own signature?
A Yes.
Q Is that this same affidavit which you now have in front of you, witness?
A Yes.
Q On the 8th of January, 1947, in connection with this statement, you stated under oath that, in your opinion, the official instructions of the Commander in Chief of Army Group F coincided with your official instructions, as far as they concerned tactical matters.
DR. LATERNSER: I object to this question, Your Honors. That again quite obviously is a leading question. The prosecutor might possibly ask, "What did you testify to on the 8th of January?" but he cannot ask, "Did you state certain matters?" I, therefore, ask not to admit the question which has just been put.
THE PRESIDENT: The question undoubtedly is of a preliminary nature and the witness may answer it.
MR. RAPP: Very well, Your Honor.
Q Witness, will you answer?
A I have already answered the question as "Yes." I may clarify this by saying that the expression, "tactical matters", does not perhaps fully apply but I thought more of tactical military questions. That is not purely combat matters but tactical military matters.
Q Are matters, say for instance, levying of hostages or the ordering of retaliation measures, the security of supply columns on roads or railroads - are those tactical questions? Witness, did you understand my question?
A Yes. Maybe the levying of hostages cannot be counted into this sphere but merely the retaliation measure in the carrying out, if it concerns a large execution.
Q Witness, I don't quite understand that. Would you make it a little clearer?
A You asked -- it was asked whether most of the measures of levying of hostages were discussed. However, these were such details that they were merely outlined and were only in outline brought to the knowledge of the leadership of the Army.
Q Witness, I don't think you understood my question properly. I asked you merely whether matters which I have just named were matters of a tactical nature. There was no question of discussions with the Army Group. Other matters you were not asked about.
A I am sorry, I misunderstood that.
DR. LATERNSER: I object to the question. This does not concern a question of the witness which concerns facts. That is an expert question.
THE PRESIDENT: You may answer it.
A I should like to answer the question with "Yes."
NOKW 1304 is being marked for identification only as 440-A2.
DR. LATERNSER: Your Honor, apart from the fact that as I previously submitted, - I do not think it admissible to submit an affidavit of a witness who is personally present, I repeat that I do not think it is legal to submit affidavits of a witness who is present in person. In this particular case I have to point out the period of 24 hours which is supposed to expire before a document is introduced I would like to draw the attention of the court to the fact that the prosecution said before that they would make an exception with documents to be used for cross-examination.
This witness, however, is not under cross-examination. The 24-hour notice will have to be kept. I do not like to call your attention to this space of time, but in this case I have to do it because in any case I do not think the introduction of this affidavit is legal. I therefore ask that the document is at least not admissible concerning the notice period which has not lapsed.
MR. RAPP: Your Honors, as a matter of fact, this document to be marked as an exhibit is to be used for purposes of cross-examination inasmuch as we are trying to impeach the witness. There are statements of inconsistency which the witness has made before the court, and which he has made previously.
DR. LATERNSER: Your Honors, I did not understand that correctly. Maybe I did not hear it correctly. I have never in my life experienced that one wanted to discredit one's own evidence. If the prosecution intends to do that, I do not understand it. Above all, I do not understand in that case why they called this witness as a prosecution witness.
PRESIDENT WENNERSTRUM: In the first place, this witness is called as a prosecution witness, and this Tribunal does not feel that you can impeach your own witness. We have endeavored repeatedly to advise the prosecution as to the manner in which these statements may be used for the purpose of recollecting, advising the witness, and causing him to recollect as to certain statements. The procedure has not been followed and unless it is, why we will have to proceed along some other line, - to something along some other line.
MR. RAPP: Very well, your Honor.
PRESIDENT WENNERSTRUM: The discrepancies, if any, will have to be pointed out first before we can even recognize the matters to which you have referred.
MR. RAPP: Very well, your Honor.
I would just like to ask the Court whether or not Document NOKW 1304 can be submitted for identification only, with the designated number as suggested.
PRESIDENT WENNERSTRUM: There is no objection to that for the record, but there is a ruling that it is not to be considered as admitted in evidence in any degree.
MR. RAPP: That is correct, your Honor. We fully understand that.
PRESIDENT WENNERSTRUM: The German counsels are not hearing this proceeding.
Are you hearing it now.
(German counsel signified that they were.)
BY MR. RAPP: Witness, did you on the 15th of May;
DR. LATERNSER: Your Honor-
MR. RAPP: Your Honor, I believe Dr. Laternser can't read my mind about the question I would like to ask the witness.
PRESIDENT WENNERSTRUM: I think, Dr. Laternser, if you will kindly wait until he finishes his question. Remain right there and then we will save a little time perhaps.
BY MR. RAPP:
Q. Witness, did you on the 15th of May, 1947, in connection with an affidavit, - did you state that you took full responsibility of--recognition of the fullest responsibility for what you ordered?
A. Yes.
DR. LATERNSER: I object to the question. It is a leading question which is not admissible.
PRESIDENT WENNERSTRUM: The witness may answer.
A. My answer to the question was, "yes".
Q. Witness, did you on the same day further state, under oath, that the then Commander-in-Chief of Army Group F, the defendant von Weichs, with whom you worked closely together, was completely informed about all orders which you issued?
A. I cannot recollect that clearly, whether I made that statement in this exact formulation.
DR. LATERNSER: Your Honor, if ever there has been put a leading question that was it. I object.
JUSTICE CARTER: Mr. Rapp, evidently you are trying to show some statements in these affidavits that are in conflict with what he testified to orally
MR. RAPP: That is correct, your Honor.
JUSTICE CARTER: So far as I can see, none of those conflicts are important to the guilt or innocence of these defendants.
They do not bear upon anything the defendants have done, and those conflicts on immaterial matters are not important to us here. It seems to me that we are wasting a lot of time on something that is of no particular value. I may be mistaken about that, but that is my view of it up to the present.
MR. RAPP: Your Honor, may I point out that we are trying to establish the responsibility, or co-responsibility of the defendant von Weichs for such things as ordered and carried out by the witness, Felber. I believe that has, possibly, a very important bearing on the case of the defendant Weichs.
JUSTICE CARTER: It might have some bearing, but his opinions on the matter are not binding.
MR. RAPP: Your Honor, we are merely trying to ascertain whether or not, these orders, and the contents of these orders were called to the attention at that time of the defendant, Weichs, and only so far as this is concerned, do we want to have the witness testify.
JUSTICE CARTER: Why don't you just ask him that?
BY MR. RAPP:
Q. Witness, did you, in the most important cases, so far as they concerned retaliation and reprisal orders, did you discuss these matter personally with von Weichs?
A. I have informed him of the more important retaliation measures in my reports and apart from that the Army Group was informed through our daily reports concerning these matters.
Q. How did the commander-in-chief von Weichs react on the basis of your report?
A. Since I do not recollect any specific case, where I have been reprimanded, I have to state here that one was in agreement with my measures.
MR. RAPP: We have no more questions, your Honors.
PRESIDENT WENNERSTRUM: Court adjourned until one-thirty.
.....Adjournment until 1330 hours.....
AFTERNOON SESSION
THE MARSHAL: All persons in the Courtroom will please find their seats. The Tribunal is again in session. May it please Your Honors, this afternoon the Defendant Weichs is absent from the Court because of illness.
THE PRESIDENT (JUDGE WENNERSTRUM): The Tribunal will proceed in his absence, without prejudice to his case.
MR. DENNEY: If Your Honors please, first I would like to distribute to defense counsel some additional photographs. If Your Honors please, I would like now to distribute some additional photos which come from the National Commission for the Investigation of War Crimes of Yugoslavia. These photos were not submitted at the time the first portions of this report were offered because of the fact that they deal with events occurring in the latter period which has just been concluded. We will give the copies to the defense counsel, and the Secretary General, and the Court, and we will not offer them at this time, in order that you may have at least twenty-four hours' notice. In view of the fact that Exhibit 100-d and its annexes is now approaching the size of the New York telephone directory, I suggest that we mark this 441-a for identification. And in view of the twentyfour-hour notice, I will say no more about it at this time. The Prosecution would appreciate it if the Tribunal would find it convenient to have a session on Saturday of this week. We have the witnesses from Greece here now, and we hope to start with their testimony sometime tomorrow. And there is some question of time with reference to their getting back to Greece and, in that they must be flown, there arc difficulties involving plane clearances and weather conditions. And it would help us considerably if the Tribunal could find it convenient to sit.
THE PRESIDENT (JUDGE WENNERSTRUM): May I make inquiry of the counsel for the defendants as to whether or not they would have any objections to the Tribunal's being in session on Saturday?
DR. LATERNSER: Your Honor, much as I understand the reasons of the Prosecution, I still have to object to the session on Saturday for the following reasons: The defense has to prepare its case. The defense counsel spends a whole day in the courtroom, and in the evening he is very tired, so that he can only work in a very strained state and only thus prepare his defense case. Now, we have a one day break which we need necessarily to check the proceedings of the previous week and to be well rested when we talk with our clients. As the time is very short and very limited for the preparation of the defense case, the defense can, therefore, not do without a sessionless day.
THE PRESIDENT (JUDGE WENNERSTRUM): May I suggest to Dr. Laternser that, as you go on with your defense, there may be occasions when you will need some time or need to have it speeded up, perhaps. The Prosecution is asking this as a favor. As far as the Tribunal is concerned, we're willing to sit. But with the transportation problem and the limited facilities for airplane travel, it seems to me that, under these circumstances, for this one day, it would be advisable.
DR. SAUTER: Dr. Sauter for Defendants Geitner and Lanz. Your Honor, may I make another suggestion. We quite see that there is an ulterior interest, and so that these witnesses who are away from their homes can return as soon as possible, I think it would be - may be suitable if instead, after the Greek witnesses are through, maybe you can then give us a day off - may be a Monday or a Friday. And in that way it would be worked out, and all defense counsel I think would agree to this, since the Prosecution is interested in sending the Greek witnesses back as soon as possible.
THE PRESIDENT (JUDGE WENNERSTRUM): If it should develop, Dr. Sauter, that after they are excused you are cramped for time, I am quite certain that the Tribunal will give you an extra day. But let us meet that situation when it arises. Now, what we would like to do is to have your consent to this sitting of the Tribunal on Saturday, but we don't want to be arbitrary about the matter. Under the circumstances.
DR. SAUTER: We quite certainly agree now, but maybe we can, later on, return to this request which I made just now.
THE PRESIDENT (JUDGE WENNERSTRUM): Very well. Under the circumstances then the Tribunal will mention Saturday, and we will then take up your request if it appears necessary or at a later time.
Court No. V, Case No. VII.
MR. DENNEY: Now, if your Honors please, that is all we have now. We have no further questions to the witness and I imaging there is some cross examination.
THE PRESIDENT: You may proceed with such cross examination as counsel for defense wishes to present.
CROSS EXAMINATION BY DR. LATERNSER:
Q. Witness, you have come from a camp near Marburg?
A. Yes.
Q. You said yesterday when you first started that since about three days you were under more severe supervision in jail. What did you mean by that? What does it consist of?
A. I mean that I was brought to a cell, in solitary confinement; I was alone there; it was specially locked and it was ordered that I would not fetch my food as usual. I cannot collect it as usual, together with the other inmates but it has to be brought to me; that I may only live alone under special supervision and that I am not allowed to write and receive letters.
Q. Did this sudden change in the manner of confinement, did that have any effect on your state of health?
A. I cannot say that it made my tasks any easier.
Q. Witness, did you yesterday, that is, after your examination in this court room started, and during the course of last evening or this morning before the session started, did you talk to any representatives of the prosecution?
A. No. May I correct myself in as much as outside in the corridor I talked very briefly to Mr. Rapp but that is immaterial.
Q. But nothing concerning your testimony?
A. No.
Q. Yesterday, you were read to, from a memorandum, I think the date is the 15 of July 1946, the Prosecutor submitted several items out of this document to you.
How did this memorandum, come into existence?
A. In my prison camp Tschuffenhausen, where I had nothing else to do, I wrote this down for myself and for my personal memoirs. I wrote down those matters as I could judge them subsequently, retroactively, and I compiled them there. That is, as a basis, I had merely a short note book where the events of the particular day were put down in brief style. Any orders or other documentary material of a more detailed nature I did not have.
Q. Witness, where were you when you completed the memorandum?
A. At that time I was in the internment camp 78, Tschuffenhausen near Stuttgart.
Q. How did the memorandum get into the hands of the Prosecution?
A. A Captain in Tschuffenhausen, Captain of C.I.C., his name was Captain Silver, one day talked to us, addressed us, that is, the Generals who were together in Tschuffenhausen, and he suggested there to put down any former experiences if we wished to do so and we could add these to our files. For this reason alone I decided at that time to put down these matters as long as I could remember them well, put them down in writing, and to incorporate them into my personal files.
Q. Is this memorandum which we discussed just now the document which I am now going to show you which bears No. NOKW 1735?
A. Yes, indeed, that is the document.
Q. Then you, on the 8th of January 1947, made an affidavit for the Prosecution which bears No. NOKW 611. Is that correct?
A. That is the affidavit which was under discussion this morning.
Q. I do not want to concern myself with the contents. All I want to establish now is: In what manner this partly used affidavit came into existence? How did that come about?
A. This affidavit is a compilation of interrogations which took place around about the end of last year and beginning of this year.
Q. Interrogations by whom?
A. Interrogations by Mr. Rapp.
Q. That is by the Prosecution?
A. Yes, by the Prosecution.
Q. Did you write this affidavit yourself?
A. No.
Q. Who drafted this affidavit in the way in which it is submitted now?
A. I assume the Prosecution.
Q. Not you then?
A. No.
Q. Does the affidavit from the 8 of January contain all that you said at that time?
A. It does not contain everything since the interrogation which preceded the affidavit contained more questions, More matter which however might have been immaterial.
Q. At that time you were in Nurmberg?
A. Yes.
Q. And in jail?
A. Yes.
Q. Before or after you had signed the affidavit, were you told that after you had signed it you could return to the camp near Marburg?
A. No, that was told to me later, one day before I actually departed.
Q. That is after you had already signed?
A. Yes.
Q. This affidavit, is thus an addition to an affidavit likewise of the 8th of January? Is that correct?
A. Yes.
Q. On whose initiative is this additional affidavit made -may I finish my question - did you make this additional affidavit on your own account or were you requested to make it?
A. After I had made my statement on the very same day this additional affidavit was submitted to me.
Q. And who drafted this additional affidavit?
A. I must assume that that likewise was the Prosecution.
Q. Not you yourself then?
A. No.
Q. Was this additional affidavit -- did it seem especially important to the Prosecution?
A. Yes, I should think so; apparently the statements which I had made on the morning of that day did not seem sufficient to the Prosecution.
Q. What were you told in order that you would sign this additional affidavit as well?
A. Whether I was given a more detailed explanation for this I cannot say today any more.
Q. Do you today remember quite well if the Prosecution was particularly interested in this additional explanation?
A. I cannot say that with certainty but I assume that since they came to me that very same day and asked me to sign.
Q I now submit to you this affidavit and I ask you to tell us whether that is the affidavit NOKW 611, with the annex. The Prosecution gave it the identification number 440-a?
A Yes.
Q Now, a further affidavit for the Prosecution, the contents of which I do not want to discuss here, that is the affidavit NOKW 1731, which is in document book 18, and it bears the date of 19 February 1947; how did this affidavit come about?
A The affidavit, may I just look at it for a moment?
DR. LATERNSER: For the information of the Court that is the affidavit 440-A-1.
THE PRESIDENT: Dr. Laternser, may I suggest or request in referring to these various papers you refer to them by exhibit numbers. It will be helpful to the Tribunal in making its record.
DR. LATERNSER: Yes, Your Honor, I can do that immediately. The first affidavit had identification number 409-A, that is the one which bears the number NOKW 1735. The second affidavit which I mentioned just now was NOKW 611. This document has the identification number 440-A. And the document which I am talking about now is NOKW 1731. It bears the number 440-A-1. Those are not exhibits.
A Yes, indeed. This affidavit came about through a representative of the Prosecution who came to my camp in Allendorf at that time, and he interrogated me there concerning the individual items of this affidavit, and then he compared the various items and then asked me to sign them. The affidavit was made in Allendorf.
Q In other words then this affidavit was not drafted by you?
A No.
Q You didn't write it yourself?
A No.
Q But you did sign it?
A Yes.
Q Looking at these affidavits now on the basis of the affidavit the Prosecution today asked you certain questions to point out discrepancies and to try to show up discrepancies between these affidavits and the testimony which you gave yesterday in this Courtroom.