Q.- Witness, was the conduct of warfare in the Balkans, was it similar, did it follow the laws of humanity and the laws of international law? You know that violations happened in every Army but it is important to me whether the conduct of warfare in the Balkans was about what it used to be in front of the enemies at other times or whether the violations of international law and of human laws was particularly great. Perhaps you would say something on that subject.
A.- About the warfare of the enemy, the prosecution was informed by me in the memorandum which I have explained in detail.
Q.- We cannot use that because it has not been submitted as evidence or if it is important you can tell us the contents later.
A.- My general impression about the enemy's warfare in the Balkans is that the warfare and the methods, the gangs used, was not the warfare which I came across with any other enemy I have met in any theatre of war, not even in fighting against the partisans in the winter 1941-42 in Russia. In my opinion one cannot call it warfare at all but these insidious acts which took place in the night and these violations, with their unpleasant endings, in my opinion, prove that this method of fighting, according to human rights, does not conform with it at all. The drastic acts already quoted are again proof that as a soldier, one could not possibly agree to these methods and really when visiting my troops I always had to tell them again and again to encourage these brave men who only did their duty, to stop them from taking retaliation measures which were continuous and to stop them from doing so. We generally succeeded but that occurrences occurred occasionally when one knew one's comrades were being killed I believe one cannot consider proof that the German warfare in the Balkans was not in accordance with the laws of humanity. I also talked with the Commander in Chief Southeast and we were always worried about this. It was Commander Weichs, who had exactly the same opinion at the time. I would like to think that if it had been said before that many atrocities which took place that can be accepted as true.
Q.- Witness, for several weeks now, we have heard of numerous retaliation measures and reprisal measures in this Tribunal, which the German Army and the German Commanders ordered, or rather carried out. Is it your opinion that these retaliation measures generally would have been avoided if the warfare of your enemy at the time would have kept to international law and to the laws of humanity at the time?
A.- That is natural for me.
Q.- If I may go into detail about your reply. Please tell me, if I understood you correctly, you considered the situation thus as you say, if the enemy had not done these things, then the Germans would not have had any cause to take retaliation measures and reprisal measures and similar matters. Is that right?
A.- I agree.
Q.- Witness, General Ritter von Geitner was Chief of Staff. He had a number of associates on his staff. Which position on his staff did you hold?
A.- I had the tactical staff, the tactical operations staff. You can say Operations Staff; it sounds better. It was, therefore, a general staff with the chief, Ia, Quartermaster General, and departments which a tactical staff usually requires. Apart from that I had separate administration staff which consisted of officials, Military Officials, but also of civilians of all grades and of all professions.
Q.- Chief of the Tactical Staff was the defendant Ritter von Geitner?
A.- Yes.
Q.- Did you hear von Geitner had anything to do with tho administrative staff as well as you said?
A.- Of course he was connected with it because he knew about the important matters in the administrative staff. Of course the chief of time administrative staff in no manner wanted to be subordinate to the Chief of Staff and it was difficult for him to achieve it.
The first deputy, occasionally came to us and this shows that Geitner had actually could not interfere in the administrative staff.
Q.- Was the Chief of the Administrative staff in Ordnance, that is the staff who had to do with administration matters, was he subordinate to the Chief of the Tactical Staff, Herr von Geitner?
A.- No, I tried but could not achieve it.
Q.- Is it right when I come to the conclusion that officially, according to orders, the defendant von Geitner had nothing to do with the matters of the administrative staff, as you said, he might have been interested in order to be informed, but on the other hand to see what went on but I want to know whether he officially or unofficially acted as superior, Had he anything to do with the matters of general administration staff?
A.- No, it was definitely denied by the Chief of the Administrative Staff.
THE PRESIDENT: Dr. Sauter, I take it you will not be able to complete your cross examination this afternoon?
DR. SAUTER: No, I don't think so.
THE PRESIDENT: The Tribunal will adjourn until 0930 tomorrow morning.
(The Tribunal will recess until 0930 o'clock tomorrow morning.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Wilhelm List, et al, defendants, sitting at Nuernberg, Germany, on 13 August 1947, 0930-1630, Justice Wennerstrum presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal 5. Military Tribunal 5 is now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.
THE PRESIDENT: The Marshal will ascertain as to whether all the defendants are present in the courtroom.
THE MARSHAL: May it please Your Honor, all defendants are present in the courtroom.
THE PRESIDENT: Judge George J. Burke will preside at this day's session.
PRESIDING JUDGE BURKE: You may proceed, Dr. Sauter.
HANS GUSTAV FELBER - Resumed CROSS EXAMINATION - Continued BY DR. SAUTER:
Q. Witness, at the end of yesterday's session we stopped around the description that you gave us about your co-workers you had in your staff, and you told us that you had two staffs, one administrative staff and one so-called tactical staff or command staff, and you further reported that the chief of the tactical staff was General Ritter von Geitner. Further, you explained to us that Ritter von Geitner did not really have anything to do with matters of the administrative staff but, as a matter of course, he was informed about the activities of the administrative staff. He had to keep himself posted on these matters in order to make sure that his department worked in a uniform manner. Now, we shall continue at this point. The defendant von Geitner, according to you, then was chief of your tactical staff. When you were not present, let us say, for instance, you were on leave or you were home, who was then your deputy?
A. That was decided from case to case and especially ordered.
Generally speaking, it would be the senior general of my command area. It might have been General Geip or at another time it was General von Geibel.
Q. This deputy then, who was appointed in cases where you were prevented, according to my knowledge, had jurisdiction too, is that correct?
A. That is correct.
Q. I beg your pardon?
A. Yes, that is correct.
Q. What function according to the conception of the General Staff did your chief of staff, General von Geitner, have as chief of the tactical staff? What I mean, witness - I'm asking you to answer to the effect of the executive powers, if any, the chief of your tactical staff had and which orders he had.
A. The position of the chief of the general staff of a higher command post, he was the first advisor of his military commander. He had no executive functions with respect to tactical orders. That is, he could not issue them on his own account. Furthermore, he had no authority over admonishments or other objections to anything in connection with the work of the troops. With legal matters he had nothing to do at all. His duty was clearly established in a special instruction which generally was called among army people as the "Red Scapegoat".
Q. That, of course, is a joking expression, isn't it? But the official title was Manual for the Service of the General Staff in Wartime, and that was the Army Service Manual G-92. In this Manual for the Service of the General Staff in Wartime the duties and authority of the chief of the general staff are clearly defined. Your Honors, in my case in chief for the defendant Geitner I shall submit as evidence this official instruction. Witness, now yesterday we were informed about a document No. NOKW-1731. That is Exhibit No. 440-a-1. I repeat, 440-a-1. That is your affidavit of the 9th of February 1947. And in this document you designated von Geitner as your deputy. Now, just previously you told us that your deputy was nominated for the time of your absence from case to case.
That is, always the senior officer of your sphere of command. Can you explain to us why, in spite of this fact which you mentioned just now, you designated Geitner as your deputy in your affidavit, or whether your former statement that he was your deputy -- are you going to correct this statement about it? Just a minute, I believe the prosecutor would like to say something.
MR. RAPP: If I may make this interruption, the document referred to by this defense counsel has not been offered as an exhibit, as stated by the defense counsel, but it was merely marked for identification only.
PRESIDING JUDGE BURKE: I believe the Tribunal understands that.
DR. SAUTER: That is correct. I only named the number which the prosecution gave this document in order that the Tribunal knows what document I'm referring to. Witness, did you get the question clearly and do you remember it?
A. Yes, indeed.
Q. Then I ask you to make your comments, whether there is a discrepancy, whether you would like to change your statement, or what attitude you have to these questions.
A. One must make a difference between a deputy in command for a lengthy period, let us say at least a few days, and a deputizing in current affairs when, for instance, the commander in chief and his chief are physically separated, which can happen, for instance, and did happen when I went for two or three days to visit the troops in a band area. In that case no special general was nominated as deputy, but in that case the chief of the general staff looked after my affairs as deputy for me -- that is, after the current affairs. But even then, in such a case he was not authorized, according to Manual, to issue orders of a tactical nature without my knowledge. I believe, therefore, that the expression deputy, as it is put down in the document mentioned, would apply to this case.
Q. As far as I know, witness, even in this very temporary prevention of the military commander the chief of staff was only allowed to deal with such matters which were very urgent and could not possibly he delayed, which had to he dealt with immediately. And then only under the condition that the military commander could not he got in touch with. Is that correct?
A. That is correct.
Q That is shown from the Service Regulation for the General Staff, which I shall later submit as evidence. If now, you, as military commander, were absent for a short period so that a real deputy in the person of the next higher troop commander was not appointed -- in that case could your chief of staff deal with all matters, or even in this temporary case were there some exceptions as to certain functions of your which the chief of staff could not deal with?
A In such a case he was, for instance, not allowed to deal with judicial and court matters nor with tactical orders. For instance, referring to the deployment of the troops, he was not allowed to deal with it. Only in a desperately urgent case was he, and then he had to carry the responsibility for his orders. But may I add that in practice of war it happened that other ways and means had to be employed. In those cases it was a question of military agreement between the two persons concerned so that the chief could judge whether his commander would be willing to subscribe to an order which he might have issued, maybe merely as a formal order. According to the regulations he might not have been allowed to issue it, but if he had to issue it he would have to make sure that his commander would agree with it.
Q Witness, you said before that even in such a very temporary prevention of the commander judicial matters were excluded, that is, everything concerning legal matters. I suppose that was because the chief of staff was not allowed to be in charge of the courts. Is that correct?
A That is correct.
Q Then, you talked about the tactical decisions and other matters which were excluded, which basically the chief of staff was not allowed to decide on, even if in temporary cases he had to deputize in a certain sense to the military commander.
A I could think of decisions about persons -- personnel decisions.
Q I am not thinking about personnel decisions. I am thinking about something else which is concerned more with the matters at hand here.
A May I please have a hint as to what you are referring to?
Q Yesterday you talked about executive authority, and I'm asking you now whether your chief of staff as such, on the basis of your general position as chief of the tactical staff, authorized to deputize for you in any matters concerning executive powers.
A I would like to qualify this with the following. Generally speaking, he was not allowed to do it.
Q Generally speaking he was not allowed to do it?
A But I could think of one case or another where things had to be hurried. In those cases the chief, just as I described matters in the tactical sphere before, had to deal independently on matters of a territorial character and could have occasionally made a decision.
Q Now, Witness, how did that -- I am talking about the relationship between General Felber and Chief of Staff von Geitner -- how did that appear in practice? What I mean is, if you were absent from Serbia for a longer period, there would be a deputy appointed for you in any case. That is, in the person of another commander. If you were absent for a very short period, for instance, if you had to go across country for a couple of days, wasn't, in those cases von Geitner completely independent, or did you yourself have a telephone connection with him daily -- say once or twice with your chief of staff, in order to get reports from him, in order to give him orders and things like that? How did that actually work in practice?
A It was handled in the way which you last mentioned. That is, a procedure which was usual with all troops in status of war. It happened thus that sometime during the day we had telephonic connections and discussed the very important matters at hand.
Q So that, if I may draw a conclusion from your statement, if ever was the case that Geitner was in any very important matters in a position to issue an order without having had a chance to talk to you and to ask for your consent.
Is that correct?
A That is correct.
Q That is correct then about the competency of the chief of staff -- what I'm interested in, Witness, is the following: Was the Higher SS and Police Leader subordinate to this Higher SS and Police Leader which has been discussed here several times? Was he subordinate to the chief of the tactical staff or who else was he subordinate to?
A The most rather difficult personality of this particular kind would never had been willing to be subordinate to a chief of staff. They found it very difficult already to find themselves subordinate to a commander in chief, that is, a subordination of Meisner under the chief of the General Staff was quite out of the question.
Q Who was Meisner subordinate to then?
A He was only subordinate to me and apart from me nobody. Nobody except to Himmler, that is, Reich Fuehrer SS Himmler.
Q Witness, I would now like to come to the chapter of retaliation measures. If today you look back on those things and make a picture for yourself of things that happened then, if you think of the numerous discussions which you had about these matters with your chief of staff Von Geitner, can you then, quite generally speaking, say that Herr von Geitner was a trouble maker? That he was a ruthless person? That he was insistent that things be handled ruthlessly? Or can you say just the opposite, that Geitner would reject such collective reprisal measures on his own, and that he tried to smooth them down? What could you say?
A General von Geitner did not have anything to do really with reprisal measures, for this order were given by me and were regarded by me as a more judicial measure and, of course, I discussed these matters with him currently and in more extensive and important cases I discussed them with him in a very detailed manner. On these occasions I could only find out that he had a completely sensible and very legal and judicial basis in these rather difficult questions. To talk about trouble-making, I could at no time notice anything of that kind, but according to my personal experiences of his personality and character this would be not too nice.
Q At these discussions which you had with Herr von Geitner, I believe daily, and where these chapters were discussed too, although really they did not belong under the authority and jurisdiction of Herr von Geitner, allegedly Geitner had repeatedly shown the following attitude to you. He had the principle that one should establish a winning administration -- an administration that wins the love of the population -- that is, an administration which helps to win the indigenous population and gives them a good impression of the occupation power. Is that correct?
A That is quite within the line of the relations which were established yesterday of the very happy military combination of the two of us.
Q Allegedly that is supposed to have been that he had jokingly told repeatedly, "You von Geitner, you are almost half a Serb." Can you remember these joking remarks?
A That is possible, but I cannot say that for sure today.
Q According to what you told us yesterday we assume that the SS and Higher Police Leader Meisner had a considerably more ruthless tendency. Is that correct?
A Yes, that can be definitely said.
Q Is it now correct that von Geitner, even in his very first report which he submitted to you after you arrived in Serbia, in order to inform you -- were you told already about Meisner and his ruthless attitude? Can you remember that?
A That's completely correct.
Q He allegedly said that Meissner should not be allowed to influence anybody and he behaved like a hooligan.
A This is quite possible. I cannot remember it for sure now.
Q Is it correct, according to your own experiences, that the defendant von Geitner expressed his attitude which rejected these matters, expressed his attitude personally too SS and Police Leader Meissner, and that you yourself found out that Meissner asked, subsequently, when he had to make any request or demand or wanted to give any order -he would so over Geitner's head and dealt directly with you or with another staff commander? That is, according to your own experiences?
A It is correct that Meissner never visited the Chief of the General Staff prior to a discussion with me, and I remember quite well that the personal relations between the two, especially from Geitner to Meissner, were rather tense.
Q At this initial report which you received after your arrival in Belgrade and which was submitted to you by von Geitner and at the occasion of which he informed you of the way in which Bader had handled matters in the Balkans, on this occasion he is supposed -- von Geitner is supposed to have explained to you that he was happy that he, Geitner, was glad that he had basically nothing to do with retaliation measures. And the conception that your predecessor, General Bader, had also dealt with these measures personally and had always ordered them himself, and he had never had anything to do with them and he was glad that he was rid of this pressure because he for his part had always rejected these measures. Is that correct?
A Yes, that is correct. And the conception that also my predecessor made all the decisions independently and alone I have to take it that that is completely correct.
Q You said, witness, these retaliation measures were mainly according to your feeling. You regarded them and dealt with them in your capacity as a -- within your legal jurisdiction. Is that correct?
A That is completely correct.
Q Now you said also and you talked about the executive powers and it has crystallized from your statements yesterday that you had executive powers even earlier than you recollect now. Today, witness, are you aware of the fact that also your predecessor, General Bader, too had already executive powers and that he exercised those executive powers?
A No, I have to assume that.
Q So now you have to assume it, so it follows, your Honors, this is also seen from a service regulation which has already been submitted by the prosecution and which I shall submit again in my case in chief for Geitner, also in connection with the Serbian area.
Witness, we have during the last days talked repeatedly about executive powers and you have told us, I believe it was yesterday, you had executive powers in order to be able to maintain law, order and security in the occupied countries?
A Yes, that is the idea of executive powers.
Q Can you now tell us because maybe that is a conception which is not quite clear to the Honorable Judges here, what executive power really is? Or to put it a little more clearly what function does a man have who has executive powers?
AAs far as I can remember the service regulations today, executive power includes first of all the maintenance of law, order and security and for this purpose executive powers are given to the Commander concerned and he should be allowed to exercise all means necessary in order to maintain law and order in the occupied countries.
For this purpose, he has at his disposal all troops subordinate to him.
Q Witness, this definition is a little too general. I would like to read to you a definition which is contained in a service regulation, and at the end of this I want you to tell me whether you can agree to this definition, either generally speaking, or whether you can say that it applies to conditions in Serbia as you knew them. It reads, then:
"Executive power is the right to issue orders and laws in an occupied territory by the commander of the occupying forces under exclusion of the up-to-then valid indigenous authorities. Executive power includes simultaneously the right of the commander to nominate officials and judges of the civil population or to dismiss them."
Witness, so far the definition which I found in a service regulation, I read it to you because it is quite difficult to formulate anything like that right off the bat. Would you in your personal opinion say that this definition applied to Serbian conditions and to your particular case inasmuch as you, as not a legal person, can understand these difficult questions? That is, the right to give orders, issue orders and laws in the occupied territory by the person who has the occupation power and exclusion of the indigenous authorities with the right to nominate and dismiss judges and officials of the indigenous government. Is that correct?
A Yes, in the main, that is correct. That is the same as what I said rather generally -- to issue law and order.
Q This definition which I read is consented to you, generally speaking?
A Yes indeed.
Q And new subsequent to this question with particular reference to von Geitner, did the Chief of Staff in his capacity as chief of staff -- did he have anything to do with executive powers or is it right that executive powers were purely a matter of the Commander-in-Chief? That is, the Commander-in-Chief who simultaneously was supreme judicial authority?
MR. RAPP: Your Honor, we object to this type of questioning. I believe the defense counsel has gone way beyond what could generally be called as leading the witness.
PRESIDING JUDGE BURKE: This is cross-examination, however, and while counsel has taken the liberty of covering rather broad territory, I think he may proceed.
DR. SAUTER: Your Honors, I thought it was suitable and serves a purpose to clarify this question, because the concept of executive power will turn up again and again in the course of the further proceedings, and therefore it is difficult for everybody who has not in the course of his occupation to do with these things. It is very difficult to get a clear picture of first of all what is executive power, and -
PRESIDING JUDGE BURKE: I think we have a fairly accurate idea of it at this time.
BY DR. SAUTER:
Q Witness, you said that von Geitner had nothing to do with executive powers. Who then dealt with reprisal measures within your staff?
Witness, I don't want to know the name, but I want to know his official designation, whether he was Ia, Ic.
A This was an ordnance officer, member of the Department Ia who apart from other things had the task to collect all these cases, to compile them, and to submit them to me, and he did that in the following manner. He did not previously go to his superior general staff officer -- that was the first general staff officer, neither to the chief, but as an exception, he came directly to me.
Court No. V, Case No. VII.
Q. That was not Geitner?
A. No.
Q. Witness, you told us that the daily reports--I am talking about daily reports--which were sent off daily, had to be prior to being sent off or submitted to you--these daily reports were initialed by von Geitner?
A. He either initialed them or he was present when these compiled reports were submitted to me.
Q. Who signed them?
A. Generally speaking, they went under the signature Chief of the General Staff. However, I found it sufficient to put my seal on the daily reports which had been approved by me.
Q. Is it correct that, I believe it was during your time, a special order arrived which for some unknown reason expressly ordered that such dally reports from a certain date had to be signed by the Chief of Staff or to at least be initialed by the Chief of Staff? That was supposedly a special instruction.
A. It was a general custom in the whole German Army that a Chief of Staff compiled, initialed or signed the daily reports, and according to how the Supreme Commander wished it, showed them to him previously, either previously or as it usually happened in practice afterwards. Therefore, there was really no need for this special instruction which I do not recollect either.
Q. Witness, what meaning in your opinion has the signing of initialing of daily reports by the Chief of Staff? I will put the question even more concretely. What responsibility of the Chief of Staff was expressed by the fact that he had to sign or initial these reports?
A. He took over all this, the complete responsibility for the contents of the reports.
Q. What do you mean by he took over complete responsibility for the contents?
A. I cannot think of any other purpose of his having to sign and initial reports.
Q. If in the daily reports, reprisal measures were mentioned which had been carried out on the previous day and the Chief of Staff signed this daily report, what responsibility could he then take over?
A. He carried the responsibility of the honest and clear report to a superior command.
Q. In other words, then, the responsibility he had was that the report which he initialed or signed was in compliance and agreement with the reports which he himself received, that he was responsible for the correctness of the report, is that correct?
A. Yes.
Q. He was not liable therefore for the reprisal measures but he was merely responsible for the correctness of the reports?
A. That is right, only for the correctness of the reports.
Q. There is no doubt about that, is there?
A. No.
Q. Witness, you did at one time talk about mock executions. Can you remember that? What did you understand by mock executions? What did you understand today under mock executions?
A. The day before yesterday I believe I mentioned and described these mock executions and tried to explain their purpose. These mock executions, if I may repeat that, had the purpose to give outsiders--that is to the Serbian population--the impression that for one case of a retaliation, reprisal which had been threatened to the population by a local headquarters - for instance, for a case that perpetrators of an attack did not report up to a certain fixed date-that in that case the measures which were well known to the population and I think were also feared by them, these reprisal measures would be carried out.
If nothing had happened, than probably quite soon it would have happened and it could have been expected that there would be excesses of surprise attacks, murders, etc. and they would have grown to an extent which in order to secure law and order would have caused us to more ruthless, considerably more ruthless measures.
Therefore, at least externally, the headquarters had to announce to the population that four or five or what other figure might have been a case, four or five hostages would be shot, on announcement which actually was not executed. I thought that these mock reprisal measures would further save human lives to an extent which otherwise would have been impossible for me, if I had approved and carried out the reprisal measures as it had been requested.
Q. If I understand you correctly, witness, mock executions were not carried out, not even just as a fake, out if I understand you correctly you are trying to say mock executions consisted in practice in the following: Posters or announcements in newspapers one day or the other, proclaiming to the population that certain reprisal measure had been carried out, in spite of the fact that actually these reprisal measures had not been carried out. Did I understand you correctly then?
A. Yes, indeed.
Q. Yes, And the purpose again, if I understood you correctly was that to frighten the population so as to prevent them from participating in sabotage, is that correct?
A. Yes.
Q. Witness, if it known to you that due to the emergency situation in which you and your co-workers found yourselves, that such false reports were sent to higher headquarters with respect to reprisal measures--that is, false reports inasmuch at it was reported to higher headquarters that certain reprisal measures had been carried out, whereas actually they had not been carried out.
A. I myself cannot recollect such a case but I do think it is quite possible that such--well shall we say such a pacifying report to higher headquarters was made.
Q. And what would you say was the reason for that?
A. I already took the liberty yesterday to point out that we were very sharply controlled on the part of the SS political people and that the other side, I am sure, thought that we were exaggeratedly soft and that they would have immediately reported anything like that to Himmler.
Q. Further, is it correct, witness, that for similar reasons you or your staff repeatedly did not report surprise attacks and sabotage action although they had occurred and for that reason that not in a manner which was thought exaggerated by you, reprisal measures were ordered, talked about.
A. Today I cannot recall a specific case after such a long time, but I think it would be quite within the lines of our general conception and I think it is quite possible that it happened.
Q. Witness, in one of your affidavits at one time you talked about the executions of hostages at mopping up operations?
A. I could not understand the last word.