THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Dr. Laternser?
DR. LATERNSER: I would like to continue with my presentation of documents from Document Book VIII. As Exhibit No. 140 I submit List Document No. 625. This is an excerpt from the proceedings against Field Marshal Kesselring before a military court. I want to read from page 1 of the document at the bottom, the last third:
"Proceedings of a Military Court for the Trial of War Criminals held at Tribunale Di Giustizia, Venice on Thursday, 1st May 1947 upon the trial of" -- page 2 -- "Albert Kesselring, German National, in charge of 317 Transit Camp, pursuant to Regulation 4 of the Regulations for the trial of War Criminals.
"Orders by: Lieutenant-General Sir John Harding, Commanding General Mediterranean Forces.
"President; Major General E. Hakewill-Smith.
"Members: Lieutenant Colonel" --
And then follows other names. I think it very important and I would like to draw the attention of the Tribunal to the Judge Advocate, "C.L. Stirling, Deputy Judge Advocate General of the Forces."
MR. FULKERSON: Your Honors, the purpose of this document seems to be -- I withdraw the objection.
DR. LATERNSER: I submit this document for the purpose of showing the Tribunal the members of the Tribunal. It was composed of officers and I also would like to show that the Judge Advocate was C. L. Stirling, Esquire, Deputy Judge Advocate General of the Forces, and I am informed that this is the second highest military judge of Great Britain.
The next document I would like to submit is List Document No. 630. This becomes Exhibit No. 141.
MR. FULKERSON: I would like to object to the introduction of this document. It is an extract apparently from the closing argument of the Judge Advocate General in which he makes some conclusions of law of his own which I don't believe, in the first place, are binding on this Tribunal or even persuasive and, even if they are, it more properly finds itself in a brief as it is, after all, a citation rather than a piece of evidence.
DR. LATERNSER: No, your Honors, I am submitting it for the following reason. In my presentation of documents, I have already stated that I still had an authoritative opinion, a British official one, to submit regarding the question of whether hostages can be shot as reprisals or not. This is not an ordinary opinion but this is the opinion of the Judge Advocate General who did not have the position of a prosecutor in this trial but he sat on the Tribunal and he was the proper advisor and he compiled all the material for the judges.
I would like to quote this excerpt of his statements and I think that it is a statement of the facts of the case. The fact is that he as the second highest army judge of the British Empire made this summing up.
THE PRESIDENT: The objection Till be sustained. It could very well and properly be a part of a legal argument or closing argument butt it is not permissible, in the opinion of the Tribunal, as an Exhibit.
DR. LATERNSER: Up until now I have not yet proved the order maintained by the defense which General Leclerc gave after the capture of Strassbourg. As proof that he did give this order I would now like to submit document List No. 600 which becomes Exhibit No. 141. This is an affidavit by General of the Army, Dwight D. Eisenhower part of which I would like to read. I would like to start at the top:
"I, Dwight D. Eisenhower, being duly sworn, upon my oath depose and say that:
"My full name is DWIGHT DAVID EISENHOWER. I am 57 years of age. I am in the Military Service of the United States. My rank is General of the Army, and my Army Serial number is 03822.
"On 30 November 1944, and for some time before and after that date I was supreme Commander, Allied Expeditionary Force. To the best of my knowledge and belief, on 25 November 1944, the Securite Militaire of the Second French Armored Division in the name of General Le Clerc issued an order substantially as follows:
"Decree of 25 Nov. 44.
"By order of General LECLERC, provisional military governor of the City of Strasbourg, it is decided to suppress all activities of snipers in Strasbourg.
"The following measures will be applied:
"1. For every French soldier killed in the city five German hostages will be shot, taken from those designated by the General.
"2. Every sniper will be immediately shot.
"3. Any person who gives shelter to snipers or aids them in any way will be shot.
"4. The carrying of arms is subject to the provisions of a special decree of this date. All possessors of army without permit will be arrested and court-martialled.
"By the Securite Militaire of the 2 D.B."
And then I continue:
"I do not know what individual signed this order."
I will not read the rest of the document and I would further like to submit as Exhibit 142 Document List No. 610. I would like to draw the attention of the Tribunal to this affidavit by General Barr to the first part. I will not read it since that is almost the same text as the affidavit by General Eisenhower.
My next exhibit is Document 615. This becomes Exhibit 143. This is to be found on page 9 of my document book 8. It is an affidavit by the Chief of Staff of General Eisenhower, Walter B. Smith, which he gave in London.
The questions which are found in the findings of the Tribunal he answered in the following manner. I would like the interpreter to read the last paragraph until "E", inclusively.
THE INTERPRETER: "In compliance" -- shall I begin with, "In compliance"?
"In compliance with the order of Military Tribunal No. 5, contained in message to the War Department from the Secretary General, Military Tribunals, Nurnberg, forwarded to me by W A R X 91325 of 29 November, I was Chief of Staff to General Eisenhower, Supreme Headquarters, Allied Expeditionary Force, at the time of the incident in question and the following are the answers to the questions in the cable above referred to: A. No; B. (blank); C. No; D. (Blank)."
DR. LATERNSER: I would ask that the rest be read up as far as "G".
THE INTERPRETER: "E. I recall being informed by Major General Barker, Assistant Chief of Staff, G-1, SHAEF, that one of the French Division Commanders had issued reprisal orders and that he (General Barker) had immediately disapproved them and had taken the necessary action to have them rescinded. I directed him to be sure that the Army Group Commander was alert to prevent any recurrence of such orders.
"F. No; G. (blank)."
The next exhibit I would like to submit is Exhibit 144, and this number is given to 620, and I would ask the Tribunal to take judicial notice of this affidavit. As Exhibit 145 I would like to submit Document List No. 480. This is an affidavit by General Devers which is on Page 13 of Document look VIII. I would like to ask the interpreter to read this affidavit beginning from, "I, Jacob L. Devers," until the word "Order" at the bottom of the page.
THE INTERPRETER: "I, Jacob L. Devers, being duly sworn, upon my oath, depose and say that:
"My full name is Jacob L. Devers, I am 60 years of age, and I am in the military service of the United States. My rank is General, and my Army Serial Number is 02599.
"On 30 November, 1944, and for some time before and after that date, I was Commanding General of the Sixth Army Group. To the best of my knowledge and belief on 25 November 1944, General LeClerc, Commanding the 2nd French Armored Division, issued an order substantially as follows: "Decree of 25 November 44.
"By order of General LeClerc--"
DR. FULKERSON: If your Honor please, I don't get the point of reading this order the second time. It has already been read once.
THE PRESIDENT: I believe that is correct. It has already been repeated in the record.
DR. LATERNSER: Yes, I am in agreement with that. This brings me to the end of my presentation from Document Book VIII.
Your Honor, this morning I already informed the Tribunal that up to now I unfortunately had no information from the French about the statements from the French Commanders. I think these statements are very important because these were the people who issued the order. I hope to get some information about it, and I hope that the statements will be here by Tuesday. Otherwise, or if the information does not arrive I would like as a defense counsel to draw the corresponding conclusions, i.e., if the statements from the Americans arrived in time, then the French ones could have certainly arrived in time.
This brings me to the final end of my presentation of documents. There only remain the witnesses to examine, the witnesses which have already been announced, and I also have a few motions to make which will certainly be made before Tuesday evening.
As I have found out in the meantime, the document book of my colleague, Dr. Tipp, has already been translated but it has not yet been mimeographed, the English text, so that now the situation has arisen that the defense has nothing more to present, and therefore, I must ask the Tribunal to take a rather premature recess this afternoon and hope that we can continue on Monday morning.
THE PRESIDENT: With the exception of these very few documents that you have mentioned, you will be in the position to rest, or do you rest now at this time subject to those other matters?
DR. LATERNSER: Since there is still something more to be presented, I do not want to state as defense counsel for Field Marshal List I have completely concluded my case. I would like to say that when everything has been presented.
THE PRESIDENT: Under the circumstances the Tribunal will recess now until Monday, January 12th. I want to again repeal and call to the attention of the defense counsel the necessity of having all matters in the hands of the Defense Center and the necessary departments for immediate attention by nine o'clock Monday morning.
The Tribunal will be in recess as previously announced.
(The Tribunal adjourned until 12 January 1948 at 0930 hours.)
Official Transcript of Military Tribunal V, Case VII, in the matter of the United States of America against Wilhelm List et al, defendants, sitting at Nurnberg, Germany, on 12 January 1948, 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 Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if all the defendants are present in the Courtroom?
THE MARSHAL: May it please your Honor, all the defendants are present in the Courtroom.
THE PRESIDENT: Judge burke will preside at this day's session.
PRESIDING JUDGE BURKE: You will proceed.
DR. WEISGERBER: Dr. Weisgerber for General Speidel. Your Honor, I find out that the translation of the affidavit of President Sandstroem is now available. I would like to offer Speidel Document No. 83 as Speidel Exhibit No. 62. This is an affidavit by Alfred Emil Sandstroem, former member of the Supreme Court of Sweden, resident in Stockholm, with the following contents:
It is correct that Herr SPEIDEL, General of the Air Force and then Military Commander in Greece, at the time of the Italian breakdown, released from detention a great number of Greeks who had been arrested by the Italians -- though I do not know their exact number, I would not be surprised if their number was approximately 2,000.
This fact became known to me in the following manner. I was then President of the Administrative Committee of the Aid to Greece, and immediately after the collapse, paid a visit to the Plenipotentiary Extra-ordinary of the Foreign Office in Greece, Herr ALTENBERG, for reasons related to the Aid to Greece. On this occasion I pointed out to Herr ALTENBERG that the release of the Greeks mentioned, would create a good impression, Herr ALTENBERG followed up the idea and in my presence went to the telephone and called up General SPEIDEL.
He mentioned my proposal and told me after the conversation that he had received a favorable answer. Next morning I read an official announcement of the Military Commander in a German Paper edited in Athens which said that, except for some special cases, the Greeks who had been arrested and detained by the Italians would be released. Here than 800 Greeks were released at once. Announcements about additional releases of Greeks were made in the following days.
I likewise know that General SPEIDEL in some cases ordered sentences passed by Military Tribunals on Greeks to be investigated and that he granted pardons. In particular, I remember one case at which I think --. two persons had been sentenced to death and which was much discussed in Athens. The sentence was checked upon orders of General SPEIDEL and the punishment was mitigated. I can no longer remember the names of the convicted persons, neither do I remember whether they had been sentenced by an Italian or a German Court.
As regards the relations between the Administrative Committee of the Aid to Greece and Herr SPEIDEL in his capacity of Military Commander I can say the following. In the course of time we turned more and more to the Military Authorities, and whenever we had to approach General SPEIDEL he not only was very obliging, but he also always endeavored to keep international agreements and always tried to assist us as far as possible. Whenever measures were taken which were incompatable with these agreements, they had obviously been ordered by subordinate agencies. The Military Commander, whenever we remonstrated with him, always endeavored to redress the grievances.
Signed Emil Sandstroem, Stockholm, 26 December 1947, and this is a statement by the President of the Aid for Greece at that time, Emil Sandstroem, who is at the moment in the Palestine Commission.
MR. FULKERSON: Your Honor, I make a comment rather than an objection, but I would like to call it to the attention of this Court that this statement is not sworn and that the signature is not verified.
DR. WEISGERBER: I would like to reply to this in the following way. In itself, that is correct. The defense has unfortunately not the same possibilities as the prosecution. In September of last year, I asked President Sandstroem. to make an affidavit with regard to this question as contained in the affidavit here.
THE PRESIDENT: There is no objection, Doctor, so we might as well proceed without comment. I don't wish to be discourteous but there is no necessity of explanation inasmuch as there is no objection.
DR. WEISGERBER: Your Honor, this brings me to the end of the documents which I would, like to submit. I am just waiting now for the Greek documents, the excerpts from the Greek newspapers and the official proclamations which were contained in these newspapers. These proclamations are not yet translated but I think they will be finished either today or tomorrow morning and when I have presented these documents that will bring me to the end of my case for Speidel.
THE PRESIDENT: May I inquire as to the Exhibit number again?
DR. WEISGERBER: Number 62, your Honor.
DR. TIPP: Dr. Tipp for General von Leyser. Your Honor, with the permission of the Tribunal, I would like to present the documents contained in Leyser Document Book No. III. The Tribunal is in possession of the translation, I think; from this document book, the first document I would like to submit is Leyser Document No. 61, and this becomes Leyser Exhibit No. 58. The document is contained on page 209 and it is an affidavit by the affiant who has already been mentioned several times in this trial, Werner Pfafferott. I would like to say that Mr. Pfafferott has been granted as a witness to me but I prefer to present this affidavit. I would like now to start reading the document. In paragraph one, the affiant describes?
, first of all, his military career, including his assignment in Croatia, and now I start reading from paragraph two.
I was assigned to duty in the theater of war in Croatia at the end of October 1942. As Chief of Staff I built up the staff of the Commander of the German Troops in Croatia. The Commanding General was at that time General Lueters. In the summer of 1943 the staff of the Commander of the German Troops in Croatia was reorganized into the staff of the 15th Mountain Army Corps. I continued in my position as Chief of Staff. I have known the defendant, General von Leyser, since he assumed command on 1.11.1943. I remained his Chief of Staff until about 10 June 1944; on this date I was transferred and left the Balkan area. My successor as Chief of Staff was Eberhard Einbeck. Because of the facts cited above I am in a position to make the following statements:
2. Territorial Powers in Croatia: With the reorganization of the Staff of the Commander of the German Troops in Croatia into the staff of the 15th Mountain Army Corps only operational and tactical tasks were left to the 15th Mountain Army Corps. All territorial tasks were transferred to the German general in SAGREB, who from this time on was called "German Plenipotentiary General in Croatia". In the course of time the Military Administrative Headquarters, Area Headquarters and Town Headquarters were turned over to him for this task. Since Croatia was an independent allied State, all the sovereign rights which the German Armed Forces had in the occupied territories belonged in Croatia to the Croatian authorities. With these the German Plenipotentiary General in Croatia had nothing to do. The duties of the German terri-otiral offices in Croatia were therefore restricted to matters such as caring for men on leave, military police duty, billeting questions in Zagreb and the like.
In accordance with orders, communication with the German Plenipotentiary General in Croatia and the 15th Mountain Army Corps had to be directed through the Army.
The German Plenipotentiary General in Croatia was never in any way subordinate to the 15th Mountain Amy Corps.
3. Reprisal Measures:
MR. FULKERSON: I have no objection to this affidavit but Dr. Tipp has read enough of it now so that the Tribunal can see that it is strictly cumulative of what we have gone over time and time before, and I would like to ask that he be restricted to reading that part of it which brings in something now rather than simply replowing old ground here; especially in view of the length of the affidavit.
DR. TIPP: Your Honor, in reply to that, I would like to say that if the prosecutor wants to express that the contents of this affidavit are already regarded as proved by him, then of course I agree. I assume that if the prosecutor regards this point as having been proved, then I am in complete agreement.
MR. FULKERSON: I am not willing to agree that the point has been proved but I am willing to agree that it has been read.
PRESIDING JUDGE BURKE: You may proceed.
a.) Jurisdiction: According to existing orders the ones competent for reprisal measures in Croatia were the Divisional Commanders in conjunction with the territorial offices and the Croatian authorities. The decision as to the imposition of reprisal measures rested with the latter. The Corps as such could never have ordered reprisal measures on its own initiative. For this purpose the Croatian representative attached to the Corps would have been competent. The same arrangement had also existed already with the Commander of the German Troops in Croatia.
Court No. V, Case No. VII.
I skip the next paragraph and continue with "b" on page 3:
"Procedure: According to order, reprisal measures could not be carried on without a warning to the population and announcement of the measures intended. In connection with this I recall the following individual case as an example:
"In the area of Kostajnica an announcement of this kind in hectograph form was posted, among other places, on a telegraph pole by the Cossack Regiment of Colonel von Wolf. The Commander of the Cossack Division, General von Pannwitz, objected to this form and ordered that announcements of this kind must be set up in poster type in easily visible places. He sent expressly to Agram to have such warning placards printed quickly in the way in which he required.
"Reprisal measures were always only carried out if the incidents had become numerous and the security of the troops required that severe steps be taken. I remember, for example, the following incidents, which in spite of their seriousness were not followed by any reprisal measures at all:
"An engineer platoon, which was to be used for assisting in work on the island of Solta, drove over a mine on the way and had a number of wounded.
"General von Leyser was driving with a large convoy on the Knin-Split road; the car in front of the General's car drove over a mine.
"The Divisional Commander of the 264th Infantry Division drove over a mine on the Knin-Split road and was seriously wounded.
"The Divisional adjutant of the 264th Infantry Division drove over a mine and was carried away seriously wounded in a medical truck. This car drove over another mine, the Adjutant was killed.
"Destruction of Houses for Military Reasons: With the conditions prevailing in Croatia the case could also arise that houses had to be destroyed for purely military reasons even outside of battle operations. I remember that acts of sabotage with mines used to occur Court No. V, Case No. VII.
repeatedly at the road bend near Tregir. Since the road embankment was extremely steep -- even for a climber it was impossible to get up over the embankment -- and the road bend was guarded at beginning and end only the persons who lived in two houses nearby halfway up the bend could have been responsible for these attacks, or at least must have known about them. They were warned repeatedly but when the incidents continued to occur and the Field Intelligence Service showed beyond any doubt that they were involved in the attacks both houses were burned down. From that very day the demolitions ceased. It is quite possible that this destruction was reported as a reprisal measure, although it was merely a question of military necessity.
"Here I would like to mention, your Honors, that this burning down of the houses near Topola is mentioned expressly in a prosecution document and General Leyser described this incident in a similar way in his examination.
"Cooperation with SS and SD: SS units recognized in principle only a tactical subordination to the Corps. Even in this case the Corps did not have any disciplinary authority over the SS. It did not even have the right to make any criticism whatsoever about the behavior of the SS. It could neither praise nor blame. There was never any jurisdiction over SS members. On the contrary, the SS was always subordinate to its own officers with respect to military service and discipline. Interference against measures of the SS was therefore only possible if the Corps reported to higher echelons through channels via the Army and Army Group. However, in such cases the Reichsfuehrer SS backed up the SS as a matter of principle.
"SD units were never under the Corps. On the contrary, they were merely assigned to it, that is, they received rations, billets and motor fuel through the Corps. They did not accept orders from the Corps for their missions, they never once gave any information about their work either. As a rule they declared that they had special instructions from their superior SD offices and that these Court No. V, Case No. VII.
were secret. SD units made exactly the same statements to me later in Russia. Consequently, the work of the SD went on outside the sphere of influence of the Corps.
"I have the following to say about the report contained in Exhibit 372: At the wish of the Croats, while the state of emergency still existed in Banja Luca, the Army ordered a searching operation for any partisan suspects who may have remained behind. The Police District Leader of Banja Luca undertook this task of the search, since because of the state of emergency he was still under the Corps, but he asked to be allowed to wait before carrying it out until he had received enough trained men from Gagreb. In the meantime, however, this intention had become known to the population and the search led to no result."
Figure "6" which concerns itself with the amount of truth contained in the reports I would like to draw to the Tribunal's judicial attention. I do not need to read it. I continue with Paragraph 7:
"Prisoners: The unit sent prisoners of war to divisions which had small assembly points. From there they were shipped still farther to the rear in empty supply trucks along the supply route. There were large assembly points in Agram and Belgrade, which were under the territorial offices. The Corps itself had nothing to do with the whereabouts of the prisoners. The Corps (Quartermaster) merely collected the reports of the divisions and forwarded a compilation of them to the Army.
"It was only when a large number of prisoners were captured, as, for example, when bringing back the disarmed Italians, that the Corps had to establish temporary assembly points for feeding and passing on the prisoners."
I omit the next paragraph and continue with Figure 3:
"8. Operation "Firebrand": Concerning Operation "Firebrand" I know the following in detail:
Court No. V, Case No. VII.
"In January 1944 the 2nd Brigade of the 1st Cossack Division, which up to then had still been stationed in the Serbian area, was brought into the area of the Corps. On this occasion it was decided to mop up a former Yugoslav troop training camp for mountain troops in the Kezara Mountains in the Una-Sana bend. Officially this land was not inhabited and was supposed to become a Croatian troop training camp again. Fairly large quantities of hay had been discovered there through air reconnaissance, and numerous and extensive raids and acts of sabotage had originated from this area. The 15th Mountain Army Corps gave orders, therefore, that the Cossacks should march through this region and take the stores of hay away with them at the same time. Any partisan quarters that might be found -- for indeed there could not be any regular "villages" -- were to be destroyed. Because of the great difficulties encountered the operation was not carried out by the Cossacks according to plan, it had only a very slight effect.
"If the report of the Cossack division mentioned "laying waste entire districts" it is only understandable to me in this case if I take into account the predilection of the Commander of the Cossack Division, General von Pannwitz, for very strong expressions. Besides that, the Cossacks were better than their reputation. To be sure, they were a thorn in the side of the Croatian authorities because of their nationality; many atrocity stories about the Cossack Division, therefore, was built up beyond all proportion."
Paragraph 9 deals with General von Leyser's character and a similar description of General Foertsch's character is also given.
I will continue with Figure 10:
"Evacuation of the Islands and the Coast: Since the Allies were expected to make a landing from the sea the evacuation of the coast and the islands lying in front of it was a matter of course. At the very least these areas had to be cleansed of elements suspected of being partisans. That was an absolute necessity from a tactical Court No. V, Case No. VII.
point of view. This also became clearly evident during the first commando operations on Solta, where it was unequivocally proven that the population had given assistance. The evacuation of the islands and the coast was planned for this military reason.
"There followed endless negotiations, orders and remonstrances on the impossibility of carrying them out, with half-measures and the postponement of what had been ordered. The chief difficulty here was the behavior of the Croatian authorities, who on the one hand were unwilling to forego their right of having a joint say in the matter and on the other hand did not have sufficient means at their disposal for caring for the evacuated population.
"A further insurmountable difficulty was the lack of shipping space. The Italians had taken all the larger boats with them on their retreat and the partisans had stolen and destroyed what boats were left, even the smallest. Under these conditions it was not at all possible in practice to carry out the evacuation of such a large population.
"To begin with, therefore, only the partisan suspects were supposed to be deported. However, the latter first had to be picked out by the SD agencies assigned for this purpose, upon which the Corps had no influence at all. In the end, therefore, there were only very small deportations. For example, I remember that on the islands the population was called upon to leave the land voluntarily. The part of the population which obeyed this summons settled on the coast and after some time had to be transported back again at their request, since they pointed out in their own justification that they had come voluntarily and that those who had stayed behind had not been forcibly evacuated either. It was naturally not reported to higher echelons that they had been transported back."
The next paragraph concerns an individual incident in the evacuation. I do not need to read it.
Figure 11 deals with measures taken by General von Leyser in a special case and I do not need to read this either.
The affidavit was given on the 10th of November 1947 and duly sworn and certified by me.
Leyser Document 62, if it please the Tribunal, I would like to withdraw. With regard to Document 63 I would like to say the following. After I had received this affidavit and it had been copied and included in the document book, unfortunately, an accident happened to the original and ink was spilled over it and therefore it could not be introduced here. I have already written to the affiant for a new copy and I hope it arrives in time, Your Honors, and if it does I would like to reserve the right to present it then.
PRESIDING JUDGE BURKE: What was the nature of the accident, Dr. Tipp?
DR. TIPP: Ink was spilled over it, Your Honor, and it could no longer be read.
PRESIDING JUDGE BURKE: Did you compare this affidavit with the one on which the ink was spilled?
DR. TIPP: Yes, yes, it was compared, Your Honor.
PRESIDING JUDGE BURKE: Is it an accurate copy?
DR. TIPP: Yes.
PRESIDING JUDGE BURKE: Any objection to it being admitted?
MR. FULKERSON: No, no objections, if Your Honor please.
PRESIDING JUDGE BURKE: You may proceed to make such use of it as you choose.
DR. TIPP: Thank you, Your Honor.
Then the next document I would like to present in this connection is Leyser Document No. 64 and this becomes Leyser Exhibit No. 59. It is an affidavit by Juergen Justus who has already given affidavits for General von Leyser in another connection. I would like to quote briefly from it:
"In order to supplement my affidavit, dated 20 June 1947, I am now giving an incident to the records which I remember and which is in connection with this."
The affidavit of the 20th of June, to which the affiant refers here deals with the commissar order.
"At the beginning of July 1941 two to three Russian planes attacked the divisional command post of the 269th Infantry Division. Shortly before we changed our positions, German fighter planes appeared and shot down two Russian planes. We were able to observe that one crew member bailed out of each of the Russian planes and slowly approached the ground by parachute. Messengers on motorcycles from the divisional staff received the order to take the Russian fliers prisoner and bring them to the command post at once. Shortly thereafter we heard a brief exchange of fire and after some time the messengers reported that one of the Russian fliers had been captured by troops moving in the terrain; the other, however, had opened fire immediately after his feet touched the ground. Thereupon the troops had also opened fire which resulted in the death of the Russian. They had determined that he had been a commissar.
"While I myself witnessed this incident I have frequently heard from the combat troops that smaller as well as larger encircled Russian groups would, by orders of their leader, refuse to be taken prisoner, in the ensuing fights the leader was in most cases killed and in almost every case it was determined that those people who had given the order to resist had been commissars. To my knowledge this fact was always emphasized in the reports made by the troops."
The affidavit was given on the 18th of December 1947 and duly sworn before a notary in Hamburg.
Your Honor, this concludes my case in chief for General von Leyser.
PRESIDING JUDGE BURKE: Do you wish to rest at this time for the defendant von Leyser?
DR. TIPP: Yes, Your Honor. That has concluded my case in chief.
PRESIDING JUDGE BURKE: Do you wish to make use of the affidavit on which the ink was spilled?
DR. TIPP: Your Honor, I would prefer to wait until the original comes if it comes by tomorrow evening; if it doesn't arrive by tomorrow evening, then I think I can dispense with it.
PRESIDING JUDGE BURKE: I don't see the necessity for it; if you wish to make use of it the Tribunal has conceded that you may do so.
DR. TIPP: I don't think that it is absolutely necessary, Your Honor. At least I should not like to introduce it at this point.
PRESIDING JUDGE BURKE: Then you rest.
MR. FULKERSON: Excuse me; before Dr. Gawlik begins I would like to request that the defense counsel make a brief pause between the various documents because we only got these document books this morning and I haven't had a chance to look them over very carefully and, just as a matter of courtesy, I would like to be able to at least glance at them before they go into evidence.
PRESIDING JUDGE BURKE: I assume you will have no objection to that procedure, Dr. Gawlik.
DR. GAWLIK (Counsel for Defendant Dehner): I am sorry; I didn't quite understand the first sentence. Could I hear it again, please?
No, I have no objection, Your Honor.
With the permission of the Tribunal, I would like to submit today Document Books Number VII and Dehner Number VIII. I have been told that the English translation is in the possession of the Tribunal. The first document I would like to submit is from Document Book Dehner No. VII. This is Dehner Document No. 38 and this becomes Dehner Exhibit No. 34. This is an affidavit by Henrich von Behr dated the 15th of December 1947. It is on page 103 of the document book. Under figure "1" it states:
"From July 1943 till March 1944 I was commanding officer of the 173rd Reserve Division in Croatia."
In this connection I would like to draw the attention of the Tribunal to the fact that the 173rd Reserve Division appears in individual daily reports submitted by the prosecution. Henrich von Behr was the Commander of the 173rd Reserve Division.
Under Figure "II" Henrich von Behr first of all makes statements about the question as to whether Croatia was an sovereign state within the meaning of international law. He states and I quote:
"The German forces considered Croatia an allied, sovereign state, and treated it accordingly. The Croat government had the executive power, and not the German Military Commander. As far as I know, the German forces have always respected the rights of the Croat government, the German forces were not permitted to effect any sequestrations or requisitioning. The German forces could only obtain billets if they were given them by the Croat authorities. No services were demanded from the population, If any of the Croat population were working for the Germans, it was only on the basis of voluntary employment contracts."
Under figure "III" Heinrich von Behr describes the relations between the German police assigned in Croatia to the German Wehrmacht, and I quote:
"Apart from the German troops in Croatia, police units and other German agencies were assigned to Croatia. The police units and the other German authorities were not subordinated to the German Military commander. The German Military Commander's staff could not issue either orders or any instructions to the German agencies."
Under Figure "IV" the affiant states an opinion about whether the bands which appeared in Croatia were to be regarded as belligerents within the meaning of international law. I quote:
"The bands who operated in Croatia, usually had no insignia which could have been identified from a distance. They wore civilian clothes. I also know that they were partly wearing German uniform clothing. They could not be distinguished from the civilian population at all. Furthermore, they usually did not carry their weapons openly. I also know that during their operations they did not observe the laws and usages of war, especially did they fail to treat German soldiers, who had been captured by them, as prisoners of war.