it is impossible - it doesn't make sense - that the witness should have to answer this question.
JUDGE CARTER: The witness may answer it. Overruled.
A. Requests from the troops for retaliation measures generally did not come to me at all, for everything that happened to the troops happened generally speaking during combat, and in combat no reprisal measures were ever taken. It cannot merely here concern attacks on police units who perhaps were attacked while supervising the harvesting or carrying out of other similar tasks. In those cases the Higher SS and Police Leader did request retaliation measures, and in as high a ratio as possible in those instances.
Q. Witness, did you inform Army Group F when you wanted retaliation measures, and as to when it was carried out?
A. The information on retaliation measures which had been carried out was received by the Army Group through our daily reports. Generally speaking the Army Group was informed by me, not about details, for instance, when only three or four people were concerned.
Q. Witness, in which manner was an execution ordered by you carried out?
A. The carrying out took place on the basis of an order which was given to the higher SS and Police Leader. The troops, at least in the Serbian area, refrained from all reprisal measures and from the carrying out of all reprisal measures
Q. You, therefore, do not know, witness, how the execution was actually carried out?
A. No, Meissner was usually quite strange, he also treated these matters very secretly and discretely.
Q. Who gave the order for the arresting of hostages?
A. I believe one has to distinguish, that general arrests of hostages were carried out by the Police for purely political reasons; that is to say, out of certain classes of the population they collected persons who seemed suitable to them. Hostage arrests by the local headquarters, as far as I can recollect, did not take place during my time, because we were of the opinion that we would never get the right people and that, in the last instance, the Communists would feel a quiet satisfaction about the fact that we would take people as reprisal measures who were politically their opponents. Therefore, the arrest of hostages -- at least, that is, up to 1943 -- was in the main in the sector of the High SS and Police Leader. We had no possibility whatsoever of applying any methods to really find out whether the hostages taken were actually Communists. The Staff or the Higher Police Leader never showed his cards.
Q. You said, witness, that this situation only applied up to autumn 1943. How were hostages taken as of the Fall of
COURT V CASE VII
1944.
A. The arrest of hostages took place then, too through the activities of the Higher SS and Police Leader. I was in October -- that is, on the 12th of October 1943 -- I found out through a report which came to me by mistake, a report by the Deputy of the Higher SS and Police Leader, Dr. Schaeffer -- then I was informed that Meissner only had five hostages available at that time at his so-called "hostage camp." Therefore, I had to assume that the figures which he usually gave us and which went up to the hundreds, were probably never correct.
Q. Was the number and equipment of the troops subordinate to you in Serbia sufficient to maintain law and order?
A. No, from a purely numerical point of view, I had about 70 to 80 thousand men subordinate to me, in this difficult mountain terrain, the combat troops as well as equipment; also the number was completely insufficient; especially bad was the Bulgarian Occupation Corps.
Q. Witness, what was the highest ratio which you ordered as retaliation measure?
A. I may refuse to answer this question.
Q. Did the ratios go down?
A. Yes, they went down considerably in the daily reports. I received in the reports 50 cases of murder, kidnapping or wounding within my own Serbian area; when I had applied the ratio even to a small extent, I would have had to kill thousands of people.
Q. Why, witness, did you order that ratio to go down?
A. I did not have to give an order to this effect, because the decision rested solely with me, and from the very beginning I had been determined to diminish reprisal measures where at all possible and to raise them in cases where they were really necessary and to apply them according to the severity of the case.
Q. Witness, did you ever, as retaliation, order the burning down of houses?
A. Immediately after my arrival in Belgrade, I was confronted with a request for retaliation -- I think a request by the Higher Police Leader -- I cannot say that for sure, I was asked to order the shooting of about 800 hostages and the burning down of one locality. I, after a long struggle with the Police Leader, decided this order to the effect that this complete reprisal request was not fulfilled; whether at a later date the burning down of houses took place here and there, I cannot say. I think it is, especially in the sector of a Bulgarian unit, quite possible.
Q. Were, according to any of your orders in connection with the reprisal measures, cattle or grain stores of the population confiscated?
A. This question I cannot answer. If it did happen, it can only concern individual isolated cases.
Q. Witness, did you, in your capacity as Military Commander for Serbia and Military Commander Southeast, ever give orders which concerned the taking of hostages from members of families of so-called bandits or partisans?
A. I never did anything like that because I would have considered it nonsensical.
Q. Did you, in your capacity as Military Commander Southeast and Military Commander of Serbia -- did you transfer the population able to bear arms or to work to Germany for work?
A. I had no influence on these matters. I only heard that in earlier years transport of civilian population to Germany was said to have taken place.
At my time the lack of harvest workers was so great in the whole area, especially in Serbia, that we were glad of every single person whom we had received for this work. But it is possible that the Higher SS and Police Leader transferred prisoners of his units to Germany without our knowledge.
Q. Where there hostages camps in Serbia?
A. In my time I knew nothing of a hostage camp.
Q. I am not talking about one hostage camp. I am talking about several.
A. I only heard through a complaint by the Minister President, Nedic, that a collective camp of the Higher SS and Police Leader was the Croatian Area in Semlin; apart from this, I know nothing of any such police camps, in the Serbian area.
Q. Witness, were there concentration camps in Serbia?
A. Not in my time -- at least, not then.
Q. Did Gruppenfuehrer Meissner, in his capacity as Higher SS and Police Leader in Serbia, on the basis of any orders by you, carry out shootings or hangings?
A. When retaliation measures were ordered by me, they went to Meissner as an order.
Q Witness, did the former Fieldmarshal von Weichs ever protest to you about the carrying out of your business?
A No, I had the impression that my Supreme Commander and I agreed completely in this respect.
Q Did the military commanders subordinate to you - at least on paper subordinate to you - did they protest to you about the carrying out of so-called retaliation measures?
Q Do you know in your capacity as former military commander Serbia, whether the units subordinate to you, sent delegations to Serbia?
A I never heard anything about such a delegation, and I think it is quite impossible, since this was merely the territory of the SS and police leaders, which was made clear to me by the initial discussion which I had with Keitel.
Q Witness, did you in your headquarters, in your capacity as Military Commander Southeast, as well as in your capacity as military commander Serbia, - did you hold a court martial?
A No, at least not for these purposes.
Q When you are talking about these purposes, you are talking about retaliation measures?
A Yes, retaliation measures, because the legal business for retaliation measures, these were orders to the SS and police leaders. While under his jurisdiction the Higher Police Leader had his own SS court.
Q I would like to put my question a little clearer.
There ordered shot by you as reprisal, - shot to death, - were they sentenced by a court martial?
JUDGE BURKE: It is not any clearer to me, so far as the translation is concerned.
Q Those who were sentenced by you as reprisal, sentenced to death as reprisal, were they first of all judged by a court martial?
A The persons concerned did not come under my jurisdiction. They were under the jurisdiction of the High SS and Police Leaders. I merely ordered for a certain case, a certain number of hostages to be shot.
One of the Higher SS and police leaders had a court, - legal court proceedings, I do not know which persons he chose.
Q Your order was an order, not a directive?
DR. LATERNSER: I object to this question. This question is a leading question, and I definitely object to it.
PRESIDING JUSTICE CATER: He may answer.
A In my staff, these persons were not judged by a court martial.
Q Witness, I asked you whether your order was considered a strict order?
DR. LATERNSER: I object. It is purely a legal question which the witness cannot answer. He is not a legal expert.
PRESIDING JUDGE CARTER: Whether it is a strict order or not, can only be answered by a court. I do not see how he would construe how it might be interpreted by someone.
MR. RAPP: I beg your pardon.
PRESIDING JUSTICE CARTER: I do not see how he could construe how it might have been received by the receiver of the order.
MR. RAPP: Very well.
Q Witness, was an execution actually carried out in accordance with your order by the Higher SS and Police Leader?
A I assume that.
Q Did the partisans or bands during your term of office, as military commander southeast, simultaneously military commander, supreme commander, Serbia, - did the partisans wear uniforms during that time?
A They cannot be regarded as wearing a uniform. As partisans they were everything one could possibly imagine. Only in July or August, 1944, when they had Tite did they get it.
DR. LATERNSER: I object, your Honor. The question as it was put is not admissible. The witness was asked whether the partisans wore uniforms.
The witness has said no, he cannot answer that. He has to be asked whether he saw the partisans wear uniforms.
PRESIDING JUSTICE CARTER: It might be well to inquire about his knowledge before you ask him a question.
MR. RAPP: Very well, your Honor.
Q Did the military commander subordinate to you, or in the area of Serbia, -- two commanders subordinate to you, ever report to you that the partisans were uniforms?
A On the part of the troops, generally speaking, the partisans as I said before, did not wear any common uniform at all. In a few individual cases they wore insignia, the hammer and sickle, and others wore German uniforms, Italian uniforms, and every kind of civvies. When I was personally present at band quarters I personally convinced myself of the truth of these facts.
Q Witness, were you ever given reports, or did you at any time yourself, during the experiences at the front, see that the partisans' leaders were wearing uniforms?
DR. LATERNSER: I object to the question, whether the partisans were led as a unit cannot be answered by the witness because it cannot be seen. It is therefore not a fact, but again a judgment, and therefore the question is not admissible. He cannot see whether the partisans were led. That is no fact.
PRESIDING JUSTICE CARTER: You should let the witness testify to the facts. The Court will draw its own conclusions.
MR. RAPP: Very well.
Q State whether you saw immediately at the front, the enemy which confronted you, and which fought you, were they led?
DR. LATERNSER: I object. I object to the witness answering. He cannot know it; he cannot see it.
PRESIDING JUSTICE CARTER: Objection sustained.
DIRECT EXAMINATION BY MR. RAPP:
Q What impression did you gain of the troops that confronted you from the point of view of leadership?
AAs I said before, up until the summer of 1944, one had the impression that the enemy were what we call in military language a "band". We knew partly also the names of these band leaders. The bands were even partly named after the person, after the name of the band leader.
In July 1944 this picture changed, and from that day on, there was really a kind of military organization recognizable. Even the conception, "division" which Tito gave to his unit, was a bit exaggerated.
Q Witness, did you receive through the so-called Ic channel, reports about the units of the enemy, or did you receive any such report?
AAs it is militarily usual, we tried to estimate the enemy exactly, and for this purpose too the department mentioned just now, Ic, was mainly responsible. This department submitted exact figures on the material and equipment of the enemy, inasmuch as they could recognize it themselves.
THE MARSHAL: The persons in the court room will be seated.
The Tribunal is again in session.
Q Witness, did you ever see, yourself, how retaliation measures came out?
A No.
Q Did the representatives of the OKH or OKW ever come to your headquarters and order you to witness the executions in retaliation measures?
A No, I cannot remember such a measure during my presence in Belgrade. I remember Colonel Gartmeyer and General Warlimont of the Wehrmacht Fuehrungsstab but this visit was carried out for formal reasons, that is, on directives; that did not concern the reprisal measures.
Q Did any of the representatives of Army Group F come to your headquarters for specific reasons in order to witness the implimentation of an execution?
A No.
Q Did you, in your orders, give instructions that parts of the population concerned had to witness the execution?
A No.
Q Witness, do you know the Military Commander Greece personally?
A Yes, I do; I have seen him several times.
Q Do you recognize him here in the court room?
A Yes.
Q Will you kindly point him out?
A Yes, that is the person furtherest on the right.
Q Did the defendant Speidel, the former Military Commander in Greece, ever receive the permission from you to carry out a reprisal measure?
A I cannot remember; I don't believe it.
Q Did the defendant Speidel report to you about the carrying out of retaliation measures?
A I cannot remember retaliation measures on the part of Speidel apart from one case. That is as far as I know of any extensive strike, and that was in Athens in the Spring of 1944. Otherwise as far as I believe Speidel had nothing to do with retaliation measures because he had practically no troops in contrast to myself.
Q As an evaluation, witness, what of the fighting potential of the troops under your command in Serbia?
A I can only say that until the summer of 1944 this fighting potential was a very small one because as I emphasized before, which is clear from what the state and the training of these troops show, only in the summer when active troops appear in the Balkan Theatre, and in September active divisions were put under my command this picture changed.
Q Which field headquarters were subordinate to you in Serbia?
A Of the field headquarters in Sabac, then in Cacak, in Nish, and in Belgrade. Then a special sub-headquarters which was immediately subordinate to me in Great-Bekerek-Banat and then there was another administrative sub-headquarters in Belgrade. At the same time there were counter headquarters.
Q Did you ever visit these sub-headquarters?
A Yes, I often visited the sub-headquarters.
Q Did the defendant Geitner often visit the sub-headquarters?
A Geitner was often visiting these sub administrative headquarters.
Q Witness, at the beginning of your statement you said that you were against retaliation measures and reprisal measures on principle. Is that correct?
A Yes, it is.
Q For what reasons, witness?
A Because it is against my personal views as a human being; every retaliatory measure I could only understand and comprehend if the cause for it constituted such a danger for the troops and the lives of the troops, that I could not pass this aspect and must not pass it.
When I started in my position, when I asked the Serbian Government the second or third day about my headquarters, I made it quite clear that I was interested in maintaining peace and order, and that I was interested in not carrying out any reprisals. The Serbian Government promised that it would do its part in this task and it has done that as far as it had any connection with Mihalovic; it has undoubtedly done so.
Q Witness, apart from humane reasons did other reasons prompt you to be against retaliation measures?
A Well, I thought for tactical reasons too; an exaggeration might bring about the opposite of what I intended, that is, it might bring about unrest.
Q Did any unrest break out, witness?
A In my time in general it did not break out but I remember at the beginning of the year 1944 two very conspicuous occurrences called for my attention. There was, for instance, near Sabac a train crammed with people and soldiers, had been attacked by partisans; the people were dragged away; 40 or 50 were murdered; the rest were plundered, and sent home. Two days later 7 field police in Ivanica were attacked by the population, at least in collaboration of the population, and were killed. I myself helped to bury them in Belgrade. Apart from that I do not remember any major occurrences during that time.
Q Witness, did you have a legal advisor on your staff?
A On my staff I had several legal personalities since I supervised the jurisdiction over my soldiers and then I also had to intervene if the civilian population did not carry out our orders, - those were under the Judge Advocates, about five or six.
Q: Did you ever talk with the Judge advocates about the retaliation matters?
A: I have done that very often, because I was of the view that these retaliation measures were a very important factor for my task.
Q: What did the officials of the Judge Advocate Department tell you about the retaliation measures?
A: Their view was that retaliation measures as a reprisal was an admissible measure. From my training I learned that in other armies the question of hostages had played a part. I knew also that even innocent persons, if there was need, would be made responsible. For me the question of hostages was a question which had been founded on legal arguments.
Q: Witness, do I understand you correctly when I say that your legal advisors did say that the so-called ratio was legally admissible?
A: I never talked to anybody about the ratio, either my legal advisors, because I rejected it from the very beginning.
Q: Did you, witness, ever visit the War Academy?
A: In World War I, I took part in a short training course that was a substitute for War Academy during the war.
Q: Witness, in your capacity as an officer were you instructed about the land warfare regulations?
A: That happened occasionally that something was said about these matters in a larger circle. Essentially every single individual was responsible for reading up on these matters.
Q: Witness, do you know what a war diary is?
A: The war diary which each unit start from the company upwards was forced to keep in very brief outlines the happenings of the day and the most important decisions of the higher commands, if the War Diary is kept by the Chief of the General Staff of that unit.
Q: Is there someone who is responsible for the correctness of the war diary?
A: That is the Chief of the General Staff. In case of a higher command and in the case of troops the Regimental Commander, whoever it may be in that case.
Q: Did you ever order so-called sham executions?
A: Yes, indeed, I may say in this connection that they were carried out on my orders, which was caused by the information which I had received by mistake that the troops of the Higher SS and police leader had very few hostages.
Q: From what date onwards, witness, did you order sham executions, approximately?
A: This took place approximately on 12 October 1943, perhaps a week after that the first sham measures were ordered.
Q: Witness, from this date onwards were all executions or so-called executions sham executions?
A: No, these sham executions were interdispersed with the so-called reprisal measures so far as necessary at that time. I cannot say anything about the number of the sham executions ordered by me.
Q: Can you perhaps tell us the percentage with which they were, compared to the real executions?
A: No, I had no percentage in that case. I was only influenced from case to case as they happen. Retaliation measures were not carried out by me at all and were not decided on by me.
Q: Who apart from you knew about these so-called sham executions?
A: I believe that the circle was a very small one for very definite reasons. I can believe that it was merely my chief and perhaps the expert for retaliation measures, and the Adjutant of the Department 1-A.
Q: Did the Area headquarters know of this?
A: Yes, insofar as I told the administrative area commanders when visiting them that I thought this was a very good measure, and the collective order which was still in force then could thus be circumvented, which seemed suitable to us.
Q: Were you at all afraid that the circle of the people who know about these so-called sham executions would have to be kept small?
A: Yes, indeed. As I have just hinted here I had to consider the great distrust which was especially prevalent in the SS Sector. The higher SS and police leader had his through the channel of command to the highest SS authority, Himmler, after he had been told by Meissner that we did not succeed in carrying out severe measures and did not keep to the Fuehrer Collective Order. Then we had to reckon that Himmler would at once create a frightful row with Keitel, and we would have been held responsible through that channel, and for this reason we had, as far as the so-called sham executions were concerned, to be very careful.
Q: Did Army Group F know of these sham executions?
A: I myself cannot answer that. I must assume that the Chiefs, among each other, in their personal talks talked about this point.
Q: But, witness, you personally, in spite of your good connections to Weichs, did not talk to Weichs about these measures?
A: I cannot answer that with any certainty today, but it is quite possible.
Q: Now, how were these sham execution entered into the War Diary?
A: Whether they have been entered I do not know. I don't really see any reason for that, apart from the fact that for a long period of time a retaliation measure was not ordered by us, and that one considered it an expedient to enter some figure again.
Q: Apart from Serbia, that is from this, were sham executions carried out in other areas, which were under the command of the Military commanders?
A: I don't know anything about that.
Q: Witness, for what reasons was the life of a German soldier estimated at a higher value than that of the enemy?
A: For that I cannot give an explanation.
Q: Was it estimated at a higher value, witness?
A: No, not by me. The proof of that may be a charge of a higher police leader from October 1943, where he charged me that the Serbian civilians were judged by me at a higher value than his auxiliary police, that he wanted to find out himself.
MR. RAPP: If Your Honors permit, we would like now to refer to Document Book 18 again and, if Your Honors turn to it, to the last document in this particular book -- Your Honors, if Your Honors turn please to page 91 and page 102, German defense counsel page 88 and page 100, these two documents, Your Honors, were marked for identification 440 a and 440 a/1; these two documents, Your Honors, are two affidavits executed by the witness Felber and, with Your Honors' permission, I would like now to put these documents to the witness to refresh his memory, to have him identify these documents and then, in connection with the contents of these documents, ask him some further questions.
DR. LATERNSER: Your Honors, I object to these intentions of the Prosecution because it does not conform with the regulations of Anglo- American Law. The witness is at this time a prosecution witness. He is stating here what he must know; that is to say, he must answer when questioned. It is not admissible that in the direct examination the memory of the witness is refreshed. If you do this, what the witness says is not what he knows and only this, his own knowledge, is at issue. For this reason, it is inadmissible and, if the prosecution now submits or leaves them to the witness and then subsequently puts questions to him, I emphasize and for this reason, because the witness has only got to state his knowledge in the direct examination, refreshing of his memory may not and must not take place.
DR. SAUTER (Counsel for defendants von Geitner and Lanz): I join this protest of my colleague and for another reason -- rather, for two other reasons.
First of all, our procedure is taking place under acceleration. We have always been told at all times, in every trial, the trial should be expedited as much as possible as far as can be reconciled with justice and fairness; but in my view a lot of time will be lost if, first of all, a witness is examined orally at great detail and then an affidavit of many pages being read, there is no purpose to hear this twice on the part of the prosecution.
There is another point of view which, in my view, is of a very serious nature. We have heard that the witness is in danger of being tried before this or another court because of his connections. For this reason, the prosecution was, too, careful not to examine this witness as a prosecution witness and propose to have him here as a court witness.
For the same reason, the Court told the witness that he cannot be asked to state, to testify, against himself under oath. I don't know whether the witness, during his several interrogations on the part of the prosecution, has been told about his right not to make any statements since he might incriminate himself by this. According to my experiences, this did not take place in general.
We now have the situation, the witness may only testify here about things about what he wants to testify. He can refuse to give any information regarding questions by which he might incriminate himself. This right, this privilege, is given to the American Law, and to the witness and the situation of General Felber, but this right would be taken from the witness if here as a witness he may refuse to testify regarding questions about which he does not want to give any evidence; but if, on the other hand, evidence would be submitted or read to him which, in the preceding procedure he had to give and, because he had not been told about his right to refuse to testify I don't know, Your Honors, whether the witness Felber is interested that his former testimony is not being read. I never talked to him about it. I am seeing him here for the first time but, however the situation may be, or whatever point of view the witness Felber himself takes, for fundamental reasons it should be prohibited that in such a case the previous evidence possibly given under oath should be read to his disadvantage and utilized. For these reasons I join the objection of my colleague.
DR. LATERNSER: Your Honors, I want to submit a further legal reason which should equally make it impossible for the prosecution to read these affidavits. The reason is the following one:
Every person who wants to prove something must, in every individual case, submit the best evidence for every point of evidence. We have here the witness himself and, in the presence of the best evidence, secondary evidence like an affidavit can not be used on no account in order to refresh the memory of better evidence by means of worse evidence. For these reasons, the reading of these affidavits has become impossible.
PRESIDING JUDGE CARTER: Just what is the purpose of the offering of these affidavits, Mr. Denney?
MR. DENNEY: Well, if Your Honors pleases, first, this man is not what one would consider a normal witness. He has spent a lifetime in the German Army. He has been closely associated with some, if not all, of the defendants and we have not talked to him, as we indicated to Your Honors last week. We have several affidavits which he wrote in long hand and which he signed himself which were the basis for our calling him to testify here. In some respects he has made statements on the stand which are inconsistent with those affidavits.
First, with reference to Dr. Laternser's lecture on the right to refresh the witness' recollection, it is submitted that at any time a witness may be given anything for the purpose of recalling to him presently his impression at a prior time, if these affidavits do recall to him what he said at that time and he is willing to admit that he said them at that time, then we at least have shown that he has made a statement now which is inconsistent with what he said before.
If, on the other hand, he says he never made the statement and we point out to him in his affidavit what he has said, why, of course, we submit that the affidavits are admissible for the purpose of showing these prior inconsistent statements.
We have not talked to the witness since -- I believe Mr. Rapp said last June and we are only calling him an effort to cast further light on this situation down in the Southeast.
DR. LATERNSER: Your Honors, may I add something? In answer to what the prosecution has just said, it is my view that the prosecution wants to make, conduct a cross examination with it's own witness. I have to assume and must assume that a witness provided by the prosecution will testify something which is in accordance with what the witness has done.
It does not seem to be admissible that the prosecution now wants to influence the witness by submission of former evidence to change his statements here in court. In any case, it is not possible for the prosecution to cross examine its own witness and if it could now submit his own affidavit, that would amount to a cross examination.