This interview, which was in quite another vein than the Norwegian people knew it out of publications and proclamations of the Reich Commissioner, and which accordingly had to have a sensational effect on the Norwegian public, provoked therefore the particular displeasure of the Reich Commissioner who tried to prevent the publication through an order of the highest Berlin authorities. It was merely accidental that the prohibition of the interview arrived only at a time when the publication had already taken place.
Even at the transfer of the Army Head Quarters from Northern Norway to the South of the country the contrasting views of Wehrmacht and Reich Commissariate became very obvious. The Reich Commissioner had made the proposal to the Commander-in-Chief, to keep Head Quarters in Oslo, as it had been under General v. FALKENHORST, and offered in the most generous manner to place at the disposal for this purpose all commodities required for setting up business. RELDULIC refused and set up quarters in Lillehammer, at 200 km distance from Oslo, in order to escape the atmosphere of the Reich Commissariate and of the rear area. I know from personal remarks of the Commander-in-Chief that this separation represented a freely chosen breach between the Reich Commissariate and the Wehrmacht.
The affidavit was sworn to by the affiant on the 27th of October 1947 and certified to by me.
Your Honors, that brings me, for the moment, to the end of my presentation of evidence. At this moment I would like to make a request. I still have some correspondence in progress concerned with obtaining evidence. For the most part, it is correspondence with foreign countries. Therefore, I would like to ask that if any new evidence arrives that I may be allowed to submit it.
PRESIDING JUDGE BURKE: I'm sure it will be the attitude, Dr. Fritsch, of this Tribunal that before this case is finally submitted, if you have any material that you feel would be to the interest of your client, the Tribunal will receive it or give it consideration.
DR. FRITSCH: Thank you very much.
PRESIDING JUDGE BURKE: You have nothing further at this time, I take it, then?
DR. FRITSCH: Noo Your Honor, I have nothing further to submit.
PRESIDING JUDGE BURKE: What defendant is to be represented next? You are to present evidence on behalf of what defendant?
DR. TIPP (FOR THE DEFENDANT von LEYSER): Your Honor, I am ready to begin with the presentation of the case of von Leyser. I would like to give a brief survey of the case. First of all, I intend to call the Defendant von Leyser as a witness on his own behalf. During the examination of the Witness von Leyser I would like to submit the documents from my Document Books I, II, and III, which, as I know, have already been translated for some weeks. After the cross-examination I would like to call two or three witness who have just arrived today, and I have not yet had an opportunity to talk with them and, therefore, I cannot yet state their names, but I will let the Tribunal and the Prosecution know in plenty of time, in observation of the 24-hour limit. And I am now ready to call General von Leyser to the witnessstand, Your Honor. But I don't know whether this pays during the remaining five minutes.
PRESIDING JUDGE BURKE: Well, let's get some of the preliminaries out of the way. We'll get him sworn and....
DR. TIPP: Then, with the permission of the Court I am calling the Defendant von Leyser as a witness on his own behalf to the witnessstand.
ERNST von LEYSER, a witness, took the stand and testified as follows:
PRESIDING JUDGE BURKE: You will kindly raise your right hand and be sworn. "I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing." (THE WITNESS REPEATED THE OATH) You may be seated.
DIRECT EXAMINATION BY DR. TIPP:
Q General, first of all, would you please make a pause between question and answer to allow for the interpretation?
General, please would you state to the Tribunal your full name, your date and place of birth?
A Ernst Hans Ulvich von Leyser. I was born on the 18th November 1889, in Steglitz Kreis Teltow.
Q Then, would you please describe quite briefly your youth?
A Until ten years of age I was brought up at home. My father was an active officer, and finally Lt. General and divisional commander in the First World War. My mother also came from an officer's family, and, therefore, my life was, to a certain extent, pre-described. In 1900 I was taken to the Cadet Corps in Oranienstein. In 1906 I went to the Chief Cadet Institute Lichterfelde in Berlin, and there I took the cadet examination, and then on the 24th of March 1909 I became a lieutenant in the Vth Guard Regiment, after having passed the officer examination.
Q And now, General, please describe your service career until the beginning of the First World War. First of all, I was employed as a platoonofficer in an Infantry company, and then I was in a Machine gun Corps in Doeberitz. And then I was used as a platoon leader in the machine gun section of my regiment.
Q And now please would you give the Tribunal a short survey of your assignments during the First World War?
AAt the beginning of the First World War I was a platoon leader and served in the field with my regiment, and I remained with this regiment at the Front continuously until September, 1918. In September, 1918 I became brigade adjutant, and in October, 1918 I became battalion commander in the First Guard Regiment.
Q If I have understood you correctly, General, you served at first as a lieutenant and when were you promoted during the war?
A In June, 1915 I was promoted first lieutenant and in June, 1918 I was promoted to captain.
Q And which decorations did you get in the First World War?
A I got the Iron Cross, first and second class, and the Hohenzollern House Order, with swords, and the Austrian Merit Cross.
Q And were you wounded during the war, General?
A I neither had wounds nor any kind of illness.
PRESIDING JUDGE BURKE: We will adjourn at this time until 9:30 tomorrow morning.
(THE TRIBUNAL ADJOURNED AT 1630 to RESUME 6 NOVEMBER 1947 at 9:30.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Wilhelm List, et al, defendants, sitting at Nurnberg, Germany, on 6 November 1947, 0930, Justice Burke, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal V. Military Tribunal V is now in session. God save the United States of America and this honorable Tribunal. There will be order in the courtroom.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present in court?
THE MARSHAL: May it please your Honor, all defendants are present in the courtroom except defendants Felmy and Speidel who are excused and von Weichs who is in the hospital.
THE PRESIDENT: Judge Burke will preside at this day's session.
PRESIDING JUDGE BURKE: You may proceed.
ERNST von LEYSER - Resumed DIRECT EXAMINATION - Continued BY DR. TIPP (Counsel for defendant von Leyser):
Q General, yesterday you described your assignments during the first World War and arrived at the end of the war. Now did you leave the Wehrmacht at the end of the First World War?
A No. At the end of the war the 1st Guards Division to which I belonged at that time went to Berlin but already in January 1919 it went for the Protection of East Prussia against the Bolshevists to the Baltic and then in September or late summer 1919 we had to evacuate the Baltic again. The division was then transferred to the Stettin area. Then later on as a Company Commander I came into the 115th Reichswehr Regiment to Prenzlau and then later on the Spandau. When the army was decreased to 100,000 men I left the army on the 31st of December 1920.
Q Now, please continue quite briefly with your career.
AAnd thin I was transferred to the Prussian Police and first of all I was in Muehlheim on the Ruhr and Essen on the Ruhr. In 1927 I was promoted a Major and was transferred as a trainer to the Police School in Kiel. In 1933 I was transferred as a Battalion Commander to Bochrum Herne and Iserlohn and then to Duesseldorf. In 1935 I was promoted to Lieutenant Colonel and as such I was Deputy Regimental Commander of the Duesseldorf Police Regiment.
Q You said, witness, that you were a police officer were you also concerned with the fighting of internal unrest in Germany.
A Yes, I was. I took part in the fighting in the Ruhr and against the unrest in Upper Silesia. My unit of a hundred men was at that time particularly well equipped for street battles.
Q Now, another question: during these period which you have just described did you have any political activity, General?
A No, I had no time at all for that in my position.
Q But you were a member of the NSDAP. General, might I ask you why you joined the Party at that time and when?
A Yes, I was a member. In the Police Service, of course, I came into contact with all classes of the population in quite a different way than which I did when in the army. The enormous distress which at that time before 1933 reigned in Germany because of the unemployment which I observed, especially amongst the young people who reported to the Police School there, and the increase of criminality which we discovered in the Police showed me quite clearly the terrible position in which Germany was at that time. All the parties had come into power but didn't get anywhere, only the choice between the extreme right and the extreme left remained; but anybody who in the Baltic had learned to know Bolshevism and experience it there could only decide for the other side; but, apart from that, 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.
Since I was a particular enemy of the Party-boss system I had to believe in the promises made by the Party, however I camp to discover that this became even worse than before.
THE PRESIDENT: General, the difficulty seems to be that you are not speaking into the microphone. If you will sit back so that your voice will go into the microphone -- that seems to be the difficulty that the interpreters are getting. If you will sit back a little bit perhaps that will remedy the situation.
Q And how long were you a member of the Party, General?
A Since Autumn 1935.
Q And did you take any kind of active part in the Party?
A No, my relations to the Party were rather more than external ones. I reported myself at that time voluntarily to be taken over back into the army and then left the Party again in 1934 when I was taken back into the Army. Above all, the hostility to the church shown by the Party were contradictory to my own feelings and also when I was still a member I still remained a member of the Johanniter Order although this was not allowed.
Q Then please, witness tell the Tribunal something about the aims of this order.
A The Johanniter Order is a purely church order, religious order, for members of the old Protestant nobility. Its aim is to fight sickness, distress and poverty. An important task in the order is also the care for the sick and wounded during the war. I belonged to this order from 1921 onwards.
DR. TIPP: Your Honors, here I would like to interrupt for a moment with regard to these points which have up until now geen discussed. I would like to submit some documents to the Tribunal. The first document which I would like to offer in this connection is in Leyser Document Book I on page 1. This is an affidavit by Wolfgang Mayor von Wittgenstein dated the 13th of September 1947 and on the 15th of September 1947 it was duly sworn to before the Buergermaster.
I don't want to read the whole of this affidavit. After the usual introduction-
PRESIDING JUDGE BURKE: Will you give the Exhibit Number, please?
DR. TIPP: Yes. I offer this as Leyser Exhibit No. 1. After the usual introduction under No's "1" and "2" there follows a description of General von Leyser's personality and then in paragraph 2 it talks about his political attitude. I would like to quote briefly from this paragraph:
"I know from conversations with my parents-in-law that Herr Ernst von Leyser was strongly opposed to the former NSDAP before the outbreak of the war already. His deeply religious feeling was mentioned as the reason for that. This coincides with the fact that he continued to wear the badge of the Johanniterorden (order of the Knights of Malta) despite the fact that this order had been prohibited by the Nazi-regime and that he always attended divine service in uniform which might be considered exceptional with high ranking officers."
I won't quote the rest of this document but I would like to point out that from the last paragraph it shows General von Leyser's attitude towards the Jewish question. I will offer this document as Leyser Exhibit No. 1.
As the next document in this connection I offer Leyser Document No. 26 from Document Book II, page 77. I offer this as Leyser Exhibit No. 2. This is an affidavit by Adolf von Haeseler dated the 30th of September 1947 which was certified on the same day by a notary in Hamburg. Herr von Haeseler also confirms the political and religious attitude of Herr von Leyser and I would like to quote briefly from the paragraph following the introduction:
"I have known Herr von Leyser for about twenty years and have during this time come to like him as a person of firm character, very helpful and public spirited. His humane ideology is demonstrated alone by his membership of the "Johanniter Order" whose duties comprise service to and nursing of the sick, the welfare of the aged and invalids, the care of the bodily and economically weakened members of society, and the education of youth.
Members of the Johanniter Order must profess the evangelical faith with a loyal heart."
And the rest of the document I need not read.
MR. FULKERSON: Your Honors please -
PRESIDING JUDGE BURKE: What is the name of the counsel that is now addressing the Tribunal?
MR. FULKERSON: Fulkerson.
PRESIDING JUDGE BURKE: Very well.
MR. FULKERSON: I would like to object on behalf of the prosecution to the last sentence contained in this affidavit which, it seems to me, is a mere assumption on the part of the affiant of the duties of the court.
DR. TIPP: I might briefly state that it doesn't seem to me possible to make such an objection here. What the affiant confirms is sworn to and he must himself be responsible for the fact whether he can swear to it or not and the point made by the prosecutor here is an objection against the contents of an affidavit but, in my opinion, he may argue the point later on but at this stage there is no cause for objection here.
PRESIDING JUDGE BURKE: You may proceed.
DR. TIPP: Then as the next document I offer the following document from Document Book II, Leyser Document No. 27 on page 79 of this document book, and I offer it as Leyser Exhibit No. 3. This affidavit also deals with Herr von Leyser's political attitude and I will not read anything from this.
And then I come to Document Book III and from this I offer Leyser Document No. 49 on page 141 of this document book and I offer this as Leyser Exhibit No. 4. This is an affidavit by Herr Otto von der Linde which was sworn to on the 12th of September 1947 before the Buergomaster and I will not read this document but I would like to recommend its contents to the Tribunal.
THE PRESIDENT: Will you please repeat the volume, page and document again?
DR. TIPP: It is Document Book III, page 141, Leyser Document No. 49, and I offer this as Leyser Exhibit No. 4. now turn to the next document in this document book is page 143. This is Leyser Document No. 50 and I offer this as Leyser Exhibit No. 5. This is an affidavit by Mrs. Elizabeth von Kutzleben of Coburg which was sworn to on the 10th of October 1947 before a notary in Coberg. This affidavit also deals with Herr von Leyser's religious attitude.
PRESIDING JUDGE BURKE: I don't have the page or document number.
DR. TIPP: Pardon me, It is page 143 of Document Book III.
MR. FULKERSON: It is the second document in Book III, your Honors. The page number seems to be missing but it is the second document in Book III.
PRESIDING JUDGE BURKE: It is a little confusing to attempt to follow by pagination when pagination seems to be the exception rather than the rule.
DR. TIPP: I would like to point out, your Honors, as far as I can find out from my English document book, the pages are numbered at the bottom. It is quite possible, perhaps, that one or two pages aren't numbered. I am sorry; it has just been pointed out to me that the English page numbers are at the top in the middle of the page. It is page 143 of the original and it is Leyser Document No. 50, the second document in Document Book III.
PRESIDING JUDGE BURKE: Proceed.
Q. General, after this interruption I would like to continue. You said just now that you were a member of the Party from 1932 until 1935. Did you later on in your military career, that is in your military promotions, get any kind of advantages from this membership?
A. No, I was promoted just the same as I would have been otherwise.
Q. And when did you join the Wehrmacht again, General?
A. At the beginning of 1936. At that time I was a lieutenant colonel in the Infantry Regiment No. 77 in Dusseldorf.
Q. And now, might I ask you to describe your military career until the beginning of World War Two?
A. In August, 1936 I was transferred to the Panzer Training School in Wuensdorf. In October, 1936 I became Commander of the newly formed Panzer Jaeger Battalion II in Stettin. In 1937 I was promoted to a colonel. In 1938 I became Commander of the Panzer Jaeger Truppen XIV, first with Group Headquarters IV in Leipzig and then in Magdeburg.
Q. And now, please give the Tribunal a description of your employment during the Second World War.
A. At the outbreak of the war, in September 1939, I became Commander of Replacement Training Regiment No. 6. In October, 1939 I became Commander of Infantry Regiment No. 169. And with this regiment I took part in the French campaign. After the campaign I went with the regiment to Poland to Jaroslau. In February, 1941 I was promoted to brigadier general. In March, 1941 I was appointed Commander of the 269th Division. And up until the beginning of the Russian campaign I was in charge of this division of the Russian campaign I was in charge of this division in the area of Tilsit, as frontier guard. And, first of all, I was subordinate to the XVIIIth Army there. Shortly before the beginning of the campaign I went with my division over to the Panzer Corps Reinhardt. This Panzer Corps was subordinate to General Hoeppner's Panzer Army.
Q. And then when was your first operation in the Russian area?
A. At the beginning of the Russian campaign I attacked in the area of Tilsit-Tauroggen with my division, as a part of Hoeppner's Panzer Army.
Q. A charge has been placed against various defendants on this point, and also against you. This is the Commissar Order which has been frequently discussed. This is contained in Document Book I, English Pages 48 and 49, and Pages 33 and 34 in the German Document Book. The two documents bear the Exhibit Nos. 13 and 14.
General, do you have this order in front of you?
A. I know it.
Q. And now might I ask you when and under which circumstances you got to know about this order?
A. Sometime before the Russian campaign there was a tactical conference with the VIIIth Army, and all the commanding generals took part in this conference and also the divisional commanders. And in this discussion we were told that there was going to be a war with Russia, and at the same time we were also told that a Fuehrer Order would be issued according to which all the Russian Political Commissars were to be shot when captured. At that time we generls objected to this because this was against our own feelings and because we didn't think that this order could be carried out.
Q. If I understand you correctly, General, during this discussion the Commissar Order was announced as being imminent.
A. Yes.
Q. And later on was it given to you as an order to be carried out?
A. As I have already said, shortly before the Russian campaign I went over to the Panzer Corps Reinhardt. General Reinhardt called the generals of his divisions together shortly before and told us about this order, but with the addition, and this is approximately what he said: "Certainly with the speedly advance of the Panzer troops we certainly wouldn't have any time to sort out the Commissars from among the prisoners. And a shooting of Commissars should therefore, not take place. All were to be treated as prisoners of war.
And were to be sent back to the rear area as customary." And in this statement he found complete agreement amongst all the divisional commanders. And so I think that practically this order was never passed on to the division and therefore also not carried out in the 269th Division, that is my division.
Q. And an additional question on this point, General: The Commissar Order was discussed frequently at that time and, therefore, I may assume that it was also known within your division?
A. This Commissar Order was known everywhere. Everybody talked about this Commissar Order and, of course, it was known amongst the division, which I learned from conversations with the commanders.
Q. And, with regard to this point, your Honors, I would like to refer to Document Book I and submit some documents from it. All these documents deal with the Commissar Order. The first one in this connection is the second document in Leyser Document Book I. It is Leyser Exhibit No. 6. This is an affidavit by the former General Hens Reinhardt, which was sworn to on the 14th of July 1947 in Neustadt Camp, before the Adjutant there, Captain W.L. Washburn. I would like to quote from this document, the first paragraph after the introduction:
"In the first part of the war against Russia, General von Leyser was Commander of the 269th Division, Together with his 369th Infantry Division, which had been employed in the Memel territory as border patrol, he came in the last days before this campaign started in this capacity under my command and took part in the advance on Leningrad as member of the forces of my 41st Armored Corps.
"During the preparatory period for this campaign the 'Commissarorder' was also issued by the Supreme Army Command. Whether this Commissar-order went also to the forces directly, that is whether it went officially and in writing into the hands of the Division Commanders at all, I do not remember any longer; I can not state with certainty to what extent this order from the Supreme Army Command distributed in printed form was issued to lower echelons. (That was also my testimony as witness before the small Tribunal in the proceedings against the Supreme Army Commander and General Staff, and other statements and affidavits bear similar witness during these proceedings.)
"At the time I rejected the contents of this Commissar-order and raised a protest against it during a conference which my Commander, General Hoepner, held in Allenstein with the oldest Commanders of his Armored-forces. General Hoepner agreed to the protest raised by me and the other commanding Generals, petitioned for an annulment or change of the order, but unfortunately without success. Then, as far as I recollect during a conference at Allenstein, I made an announcement to the Commanders of my Armored-Division to the following effect:
"'We hope to advance just as fast as we did in France and take many prisoners. Therefore we will certainly have no time to screen the prisoners taken, for 'Commissars'. This, to our mind untenable order, giving permission to soldiers to kill prisoners styled 'Commissars would, aside from this, endanger discipline in the highest degree. Shooting of Commissars would therefore have to be refrained from, all prisoners of war taken, are to be sent to the rear area'."
I will skip the next paragraph. And then General Reihhardt deals again with his testimony before the I.M.T. Committee. I quote again from the next paragraph, but one:
"I am not sure whether General von Leyser took part in this conference because he was not subordinated to me at first during the time of the concentration of troops and preparation. But I am sure that I instructed him in this sense yet before the attack started, if he did not take part in it. And I am equally sure that General von Leyser acted in his sphere of command in the same sense because General von Leyser is known to me as a human and justly thinking Commander who cares for the maintenance of his forces' discipline sympathetically but also strictly."
Court No. V, Case No. VII.
And now the next document in the same Document Book is Leyser Document No. 4. This is to be found on Page 7 of the German Document Book, and it receives Leyser Exhibit No. 7. This is an affidavit by Hans-Juergen Freiherr von Ledebur, which was duly sworn to on the 26th of July 1947 before a notary in Goslar. The affiant describes, first of all, in Figure 1, his military career, and this is is no interest here. Than, under Figure 2 he states, and I quote:
"At the beginning of the Russian Campaign 1941, I was 1. officer of the General Staff (Ia) with the 269th Infantry Division the commander of which then was General von Leyser. The division was first placed under the command of the 18th Army while protecting the frontier before the campaign, but was placed under the command of the Panzer-army Hoeppner, and within it the XXXXI. Armored-Corps, just before the beginning of the campaign.
The so-called Kommissarerlass (commissar order) about which we had heard after a conference with the division-commander with the 18th Army was in practice never forwarded to the division - perhaps on account of the change in subordination relationship. For this reason it also was not forwarded to the subordinated troops. No case became known to me either where a commissar was ever shot in the area of the division because this order was contrary to our soldierly conception."
The next document in this connection is Leyser Document No. 5, which is the next document in Document Book I. It is to be found on Page 9, and I offer it as Leyser Exhibit No. 8. This is an affidavit by the Amtsgerichtsrat Kurd Raabe from Uslar. And it was sworn to before the notary in Uslar on the 17th of July 1947. I quote:
"From 15 October 1940 until spring 1945 I was with the 269th Infantry Division as Court Martial Counsellor and Senior Staff Judge respectively.
At the end of March or beginning of April 1941 General von Leyser took over the command of the division and remained commander until his transfer about September 1942. At the beginning of the campaign against Russia I heard of an alleged FuehrerOrder according to which commissars of the Red Army should not be treated as prisoners of war but should be shot. I believe I can remember distinctly that I talked to General von Leyser about this order and its execution particularly since I was the legal adviser of the division. I myself hold the view that the generally recognized international law has to be complied with under all circumstances especially during war, and I think I am right in assuming that General von Leyser was of the same opinion and that therefore he did not want to execute the order here in question because of its being contrary to international law and to general soldier's honor, all the more so as so far as I can remember this order was said to be given only orally. This conception of General von Leyser corresponds to his entire gentlemanly way of thinking and his human sympathy towards the war-stricken countries. This I could observe on many occasions.
"Thus I had to carry through on instructions from the General several criminal cases against non-commissioned officers and privates of the Division who without order from their superior officers had made requisitions of victuals. Furthermore it is personally known to me that unclaimed cattle raving about which were brought in by a staff-officer of the Division had to be given back again to Russian inhabitants on order of General von Leyser, although they did not own the cattle, in order that the general food level of the inhabitants should not be lessened. Thereupon the requisitioning of castle was generally forbidden to the Division.
I could give still more examples which show the disinterested and completely unquestionable behavior of General von Leyser, especially his sympathy towards the inhabitants and prisoners.
Finishing I want to emphasize that no cases are known to me either officially or unofficially where commissars were shot within the area of the Division."
The next document is Leyser Document No. 6, in the same Document Book on Page 11. I offer it as Leyser Exhibit No. 9. This is an affidavit by Erich Freiherr Loeffelholz von Colberg. It was sworn to on the 10th of September 1947 by the Burgermeister in Schottenstein. In Figure 1 the affiant states that he was battery commander of the 4th Artillery Regiment 269, which belonged to General von Leyser 's Division. I would like to quote:
"I can remember that I heard of a Fuehrer-Order during the advance according to which commissars of the Red Army should not be taken prisoners but should be shot. I cannot say now exactly how I learned of it. During a visit of the Ia (tactical officer) of the Division, then Lieutenant Colonel Freiherr von Lodebur, who was known to me officially and personally from earlier times, I talked to him about this order and we agreed that it could not and would not be carried through in our area of command because it violated the honor of German officers and soldiers, whereto we would not give our names. This conversation eased my conscience in the matter of military duty because I now know that the opinion held by the staff of the Division was in conformity with my own."
Then the next document is Leyser Document No. 7. This is the following document in Document Book I. This is to be found on Page 12, and I offer it as Leyser Exhibit No. 10.
This is an affidavit by Major Karl Reetz. The affidavit was duly certified and sworn to on the 28th of July 1947 by the notary in Lueneburg. In Figure 1 the affiant describes, first of all, his service career during the war. He states that he was battalion commander of the Reconnaissance Battalion No. 269. And at the beginning of the war he was subordinate to the witness von Leyser's Division during the Russian campaign:
"It is known to me that at the beginning of the campaign against the USSR a Fuehrer-Order was made known according to which the the political commissars of the Red Army should be shot. As this order was contrary to the conception of honor of a German officer we were not ready from the very beginning to execute such an order. In order to restore the balance of our conscience in the matter of military duty disturbed by this, my commander, at that time, Major von Oertzen, spoke to Major Roenisch about the order, when General von Leyser was with the Reconnaissance Battalion accompanied by the II a (officer for personnel matters) of the Division, Major Roenisch, in the afternoon of the first day of war during the attack on Erzwilk, General von Leyser then told us that he was spoken already about this order by every unit of the Division and fortunately all the officers were of his own opinion that this order cannot be carried through.
"No single case is known to me where within, the sphere of the Division a political commissar was shot."
The next document in this connection is Leyser Document No. 8, which is the next document in Document Book I. It is on Page 14. This I offer as Leyser Exhibit No. 11. It is an affidavit by a certain Herr Juergen Justus. In Figure 1 of this document he again describes his service career. The importance of this for this case is only the fact that Justus was in the Reconnaissance Battalion of the 269th Infantry Division.
And then, the next paragraph, on the first page, I quote:
"At the beginning of the campaign against Russia, in June 1941, I was a Special Mission's Staff Officer in the staff of the Infantry Division No. 269, the commander of which, at that time, was Major General von Leyser.
"At that time, I heard about, and I remember quite well that a short time before the beginning of the campaign Russia, General von Leyser mentioned that a written order of the Fuehrer was expected, according to which the political commissars of the Red Army were to be shot when taken prisoner. Herr v. Leyser added by himself that for us, as soldiers, the shooting of prisoners was out of question, but, of course, would be done during the fighting only. I never saw such a written order, later on, though I had access to all incoming orders at the division. I therefore assume for certain that such an order never reached the division. As I remember quite exactly, I don't know anything about General von Leyser passing on such an order to the troops.
"In my capacity as a Special Mission's Staff Officer I was always on the road of advance with this or that regiment of the division, and I never saw or heard that commissars were picked out of the prisoners and that those (commissars) were shot."
The affidavit is duly sworn to and certified in Hamburg on the 20th of June 1947, before a notary. And I would like to point out to the Tribunal a mistake which has crept into the document here. The signature of the notary is missing from this affidavit. The original contains this signature, which is that of Dr. Gustav Muhle. I would like to ask perhaps that this mistake should be corrected in the Document Book.