Whether they concerned the taking of hostages or other matters I cannot recollect, but my objection which I raised with the OKW, can be retraced to the fact that orders must have come in from the OKW. In detail, I do not remember these orders.
Q. Well, do you recall whether they were written orders or oral orders?
A. They couldn't have been oral orders because they must have come by teletype or by radio transmission.
Q. And this order of September 5th, you feel, was sent out based on orders that you got prior to that date from OKW or OKH?
A. On the basis of current orders to proceed vigorously against the insurgents, Several Teletypes had come in to that effect, and on the 5th, on the same day, a telephone call came from the OKW asking what had been done in order to combat the insurrection. In view of this uprising and the crisis which we faced at that time, this order was given, also in view of the activities of the partisans and the cunning manner in which they proceeded. And then there had been orders issued by the Communist party that permitted the bands to use all means. On the basis of all these facts combined the order was given.
One must all the time picture the situation of the Balkans and the enormous effects of the insurrection not only on the occupational forces but on the whole situation.
Q. I am talking about a telephone call that you got from OKW on the 15th, the 15th of September I take it, that is.
A. On the 5th.
Q. On the 5th? On the 5th of September, I beg your pardon.
A. I beg your pardon, I meant on the 5th.
Q. Now if you will notice that paragraph f of this order, Exhibit 42, You speak of the seizure of more hostages.
A. Yes.
Q. Now what did you mean by that?
A. At the end of August, beginning of September, the insurgent movement had assumed an essentially greater proportions. After I returned from my leave, I found a completely changed situation. The insurgent movement had extended to considerably larger areas. Attacks became more frequent and in their whole manner they were somehow stronger. On the basis of these facts it had became necessary to carry out the taking of more hostages. The intensity of the insurgent movement and the extension of the movement to larger areas caused this.
Q. Where did you get your information as to what had happened during your leave from the 23rd of July to the 24 of August?
A. On my return journey, I stopped in Belgrade and there I think I gained the first impression through a discussion with the Military Commander Serbai--that was General Danckelmann--and the Military Commander of the Higher Command 65, General Bader, and then I was informed after my return to Athens in my headquarters.
Q. Who gave you the information in your headquarters at Athens?
A. I assume it was the chief of staff. Probably the Ia was present too. It might have been the Ic also. I cannot recollect that today.
Q. Did you talk to General Felmy about it when you got back?
A. I assume that I talked to General Felmy about it.
Q. And your chief at that time was Colonel Foertsch, was he not?
A. That is correct.
Q. We have already discussed the Keitel order of 16 September 1941 with reference to 50 to 1, and 100 to 1. That hears the same date, does it not? That Keitel order is Exhibit 53. That bears the same date as Exhibit 49, which is the Hitler order of the same date, 16 September 1941, which appears at page 53 of the English copy of Book 2 and page 52.
A. That is Exhibit 50, is it?
Q. Exhibit 49, I believe.
Q. That's the Hitler order to you of 16 September 1941 with reference to General Boehme.
A. To General Boehme?
Q. We're still referring to General Boehme.
A. You said Bader.
Q. Boehme.
A. You mean Boehme?
Q. Yes. Now, on the bottom of page 1 of that order it states:
"The latter," referring to Lt. General of Infantry Boehme, "exercises executive power in the insurgent area itself, pursuant to directives of Wehrmacht Commander Southeast. Insofar, all military and civilian offices must follow his instructions and regulations for a more accurate definition of his authority. The interests of the Four Year Plan are to be taken into consideration as a matter of principle."
Do you recall receiving that order from the OKW?
A. Yes.
Q. And that order was sent to you from OKW in response to your request to them of the 14th of September, which is Exhibit 48, the exhibit before, which is at page 51 of the English document book and page 42 of the German document book?
A. Yes.
Q. And in your letter to the OKW of 14 September you mentioned, at the top of the second page, a fact that it was fully understood that with the appointment of General Boehme for duty in Serbia that the interests of the Four Year Plan will be taken into consideration in this case.
A. Yes.
Q. And the OKW replied to you -- there is the notation that the interests of the Four Year Plan are to be taken into consideration as a matter of principle. What was the Four Year Plan?
A. The Four Year Plan was a plan which Goering had established and Goering had a special plenipotentiary of the Four Year Plan in Belgrade who, I think, had the task, first of all, to reactivate the mines and/or to keep them going.
I am not informed in detail of the tasks of the plenipotentiary of the Four Year Plan. The addition which I made in my request that the interests of the Four Year Plan should be taken into consideration was made for the reason to support my request concerning the employment of Boehme, i.e. to achieve this at all with Hitler, or rather with the OKW. I knew that Goering considered the southeast area, so to speak, as his own reservation and that he wanted to institute in Serbia a general of the Air Force, in order to thus exercise more influence in Serbia. And for that reason I added that supplement to my request.
Q. In Exhibit 50, which is your order to the Commander in Serbia, which is dated the 19th of September 1941, appointing General Boehme - this is at page 57 in the English document book, Your Honors, and page 46 in the German - you stated there that General Boehme was the "only possessor of executive power in accordance with the Fuehrer order binding instructions to all military and civilian offices".
A. Yes.
Q. And you stated further that "instructions for the carrying-out of operations for the necessary protective measures will be given by me only to General Boehme, who is responsible for their being carried out".
A. Yes.
Q. Now, if you'll turn to Exhibit 79 in Document Book II, which is at page 3, page 2 of the German. Your Honors, it is page 3 of the English document book, Exhibit 79. Sorry, that was the wrong book (witness handed the wrong book). That's the report from General Boehme of 9 October dealing with the execution of approximately two thousand communists and Jews in reprisal for twenty-two murdered of a signal battalion.
Do you recall having seen that at that time?
A. I have already stated that on the 9th of October I was in Crete and that I did not receive, therefore, this report until the 11th of October at the earliest, after my return from Crete.
And I have further stated that this is the only case which I can specifically recollect, and that is the murder - the murder and beastly mutilation of these soldiers of the Signal Corps.
Q. Did you make any inquiries about the source of the people who were killed in retaliation for these killings of German troops?
A. As far as I remember, no.
Q. You didn't think that ratio of approximately 100 to 1 is unusual?
A. I have already said that I recollect that the order to the 1 to 100 ratio in this case came directly from the OKW. That is what I had said and which explains the mix-up with the order of Bohme of the 10th of October. The ratio of 1 to 100 seemed high to me in any case.
Q. But you had passed down that 100 to 1 order which you received from Keitel on the 16th of September, did you not?
A. Yes, I passed it on after my objection with the OKW had been in vain. The Keitel order mentions 1 to 50, up to 1 to 100, and as far as I can recollect, it was additionally expressly ordered 1 to 100. Besides the people who had been actually shot on the 9th and 11th of October - I think there were 442 - I could not have recalled them back to life, and a larger figure than 442 people had actually been shot cannot be seen from any report contained in this documents here - I think altogether twelve times. One cannot see that a larger number than that mentioned was ever killed.
Q. So far as you know, you never made any inquiry based on the figure of two thousand to twenty-two hundred?
A. No.
Q. Did I understand you correctly to say that OKW may have ordered Boehme directly, without going through you, to carry out this particular reprisal measure?
A. I do recollect that the OKN issued orders in this case directly.
Q. You do recollect that?
A. May I add that not only in this case but quite frequently, in view of the very much better communications and connections between East Prussia and Belgrade, directives arrived at Belgrade earlier, and not via the Military Commander Southeast, and we were informed later on.
Q. And who informed you later, OKW or the Plenipotentiary Commanding General in Serbia?
A. I cannot say that any more today. I don't know.
Q Now, when did you first begin to have differences of opinion with Hitler?
A Differences of opinion with Hitler, I had only one occasion, and that was when I resigned. Previously I had never been in the position to have differences of opinion with him because I had never been able to submit a report to him alone. I had never been called or admitted to such a report.
Q Well, you said that in November, 1939 you were at a meeting where it was indicated that you had not been withdrawn.
You said that you were at a meeting in Berlin where the older generals were accused of being timid and that you were not reappointed to the Southeast Command because it was felt that you hadn't done all that you might -- that is, from Hitler's standpoint. When did you first feel that you didn't enjoy Hitler's complete confidence?
A I may clarify this in order not to leave anything unclear. The conference in Berlin in November 1939 was not a conference or a discussion, but it was a clear utterance of Hitler's wills and wishes, which he expressed in an address to the generals. None of the generals had the possibility in this so-called meeting to say one single word. The fact that I did not return to the Southeast, I did not consider a difference of opinion with Hitler. That was an opinion which Hitler had formed about me, without there ever having been any exchange of opinions between us.
Q Yet in April, 1942, Keitel indicated that you enjoyed Hitler's complete confidence on your Service Record. Do you recall that?
A I have read that now here in the documents.
MR. DENNEY: If your Honors please, Mr. Fenstermacher has some questions which he would like to put to the witness.
THE PRESIDENT: May I make the inquiry, Mr. Denney, as to what the practice has been relative to the use of two counsel for the Prosecution in cross-examination?
MR. DENNEY: Well, as I understand it, your Honor, that has been done before, and before the Commissions we did it.
THE PRESIDENT: According to the practices of which I have any personal knowledge, it is not permitted. Are there any rules or regulations in connection with the set up here?
MR. DENNEY: There are no rules with which I am familiar, your Honor.
THE PRESIDENT: Are there any objections on the part of defense counsel?
DR. LATERNSER: Your Honor, may I have a short pause of possibly three minutes so that I can talk to my colleagues; and then we can tell our attitude to the Tribunal.
THE PRESIDENT: Very well.
DR. LATERNSER: Your Honor, without wanting to establish a precedent for further cases, especially since it was also the practice before the International Military Tribunal only one member of every individual delegation could put questions in cross-examination, we, in this case, agree that two prosecutors may put questions.
THE PRESIDENT: Very well.
Mr. Fenstermacher, before you commence your further examination I trust it is not necessary to caution you not to cover any matters which have already been covered in the examination by Mr. Denney.
MR. FENSTERMACHER: Yes, your Honor.
BY MR. FENSTERMACHER:
Q Field Marshal, I believe you stated under direct examination that there were three main groups of insurgents operating in Yugoslavia when you were Armed forces Commander Southeast. Is that correct?
A Yes. it's correct.
Q You enumerated them as communist insurgents, Cetniks under Draja Mihailovic, and another group under Kosta Petanac. Is that Correct?
A Yes.
Q Did the communist insurgents wear any identifying insignia?
A No.
Q Did the Cetniks under Draja Mihailovic wear any identifying insignia?
A I don't remember.
Q And did the Kosta Petanac units--did they have any insignia?
A I don't know that either.
Q Did the Kosta Petanac insurgents and the Mihailovic insurgents ever collaborate with your troops in your fight against the Communists?
A Yes.
Q Would you say that they collaborated with your troops frequently or infrequently during the period you were in the Southeast?
AAs far as I can remember Kosta Petanac frequently collaborated; as to Draja Mihailovic he only occasionally collaborated with us during the last period.
Q You mean then that you permitted certain units of yours to collaborate with troops who might not have worn insignia?
A The collaboration was not thus that those troops were attached to our troops. They just fought in the same area. There was no uniform leadership under which they might have fought. I do not recollect anything like that. Instead when they had any occasion--the Kosta Petanacs--to spot a Communist group somewhere, then they started hostilities against this Communist group, but, of course, not under German leadership, as far as I remember; those were individual fights. One must imagine there was an insurgent movement about to start, and here and there scattered groups were caught sometimes by the Communists, sometimes by Draja Mihailovic; but in the main, by German troops. The picture is that the insurgent movement was about to begin and then became stronger. It was no so that no could say from the very beginning, "These are Communists and there are Draja Mihailovics and those are Kosta Petanacs there was no clear picture at that time. And one could not get a clear idea of what was going on, as one can now see on the basis of all these documents, when one has worked through them.
In those days I did by no means have the insight as I have gained it now from the documentary material. At that time it was a completely new situation which had to be coped with, and if a man like Petanac said he would help you, one willingly accepted that help and said, "if you find a Communist band fight it."
Q: Do you remember whether or not the Cetnik units were a tall black cap called the Cetnik Cockade?
A: I have never seen such a cap and never seen such a cockade, and I don't recollecte anything like that. I may add here that the Commander in Chief of an area such as the Balkans was, could not possibly concern himself with the members of a band that had murdered his people wearing a certain star on their cap or such and such a cap. They were illegal fighters, and had to be treated as such, if the Balkans were not to collapse altogether. We were in a terrible situation, and one could not concern oneself with the fact whether a bandit had a certain form of cap of a soviet star. Nor would the American commander in chief do so if certain people would appear here wearing a certain type of cap or cockade, maybe the insignia of the former Stahlhelm. Certainly he could not recognize those people as a national uprising. He would say those are illegal bands and they have to be treated as such. As it was all the Balkans were on fire.
Q: You mean then, Field marshall, that it was not important to you whether or not the bands wore any insignia?
A: I don't want to say that, but these people did not wear insignia in the sense that they would have been regarded in any way as military formations. They were just bands, i.e. they had to be characterized as such.
Q: Would you have fought these insurgent bands any differently if they had been wearing any insignia?
A: If the bands had been uniformed and had adhered to the war regulations they would have been treated differently. Then these bands would not have attacked people from cornfields and ambushed people passing by in motor vehicles. They then would not have stopped trains with troops going on leave and they would not have shot at them from the next hill with machine guns and then these people would not have robbed supply columns, and would not have committed atrocities in the most bestial manner which I cannot remember in detail right now, but which I think can be testified to by witnesses.
I just remember vaguely one or two of the events, but unfortunately only vaguely, as I have unfortunately, also forgotten details in other respects. All these things could not have occurred if these band members had been a national insurgent army, and adhered to the rules.
Q: What kind of attacks did the insurgent bands made on your troops, did they attack your supply lines, and communication lines?
A: They caused considerable disturbances.
Q: Did you consider attacks of that kind irregular, invalid or unpermissible methods of waging war?
A: When a country is in a peaceful state, as Serbia was, and in spite of that such events happen, then the people who cause these events must be called franctireurs, and it is illegal, irregular and forbidden. Those were very obviously attacks on the vital spots of the occupying army. One must realize that only one railroad line ran into Belgrade, and if it was interrupted and for three weeks on end the shipping on the Danube was halted, that meant that the oil supply from Roumania to Germany was throttled. That could also have meant that the occupation power in the Balkans might have collapsed, that even the Greek Government and the Greek population could no longer dispose over the necessary food supplies and with the collapse of the occupational forces the allies would have had the opportunity to land in Greece, and to establish airfields there, thus endangering the whole Southern Flank of the German Army in the Balkans.
I am only printing out what could have happened, if it had been so. In that case I would have been perfectly right to have myself and my officers shot at once for neglect of the most elementary duties of an officer towards his Fatherland.
Q: Let us suppose for a minute that you faced a regular belligerent army. Would the attacks on your communication lines then have been considered by you as a normal or an abnormal method of warfare?
A: If we find myself in a state of war the interruption of communication lines is of course permitted. There was no state of war, however, an armistice had been signed and this was a peaceful and occupied country.
Q: Did the warfare In the southeast that you faced ever reach the stage of becoming real war?
A: You mean after the conclusion of the belligerent actions? To begin with we fought a war against Greece, and Yugoslavia, and you mean whether at a later time it ever reached that state, that is open hostilities and a state of war?
I did not quite ge the question.
Q: Well, supposing the campaign against Greece and Yugoslavia ended, take the months of July, August and September 1941, can you then speak of military victories by one side and real tactical and operational warfare?
A: One can't talk of military victories, but there were larger operations which Boehme had to carry out, and they were of a military character and they were tactical and military operations.
Q: Were the insurgents you faced in the southeast openly armed?
That is to say did they carry their arms openly?
A: No.
Q: Were they organized along military lines?
A: Not in my time. I may add, of course, when a band was actually fighting then they carried their weapons openly, because they were shooting during the fighting, but when they realized a conclusion was near they endeavored to get rid of their weapons and threw them in a river or ditch or hid them somewhere and then just loitered around as peaceful peasants, and pretended not to know of anything.
Q: You say then during your time in the southeast it is improper to speak of real war between the German occupation troops and the insurgent forces?
A: A real state of war did not exist. There were only individual fights.
Q: Will you look at Exhibit 53, Document Book 2, this is on page 71 of the English, Your Honor, and I believe page 55 of the German. Field Marshall, this is an order of the Commander in Serbia dated Belgrade, 16 September 1941, the original document bears the receipt stamp of the 718th Infantry Division for four days later, 20 September 1941. You will note that the subject of the order is "Insurgent Movement." The first paragraph states, "With regard to the insurgent movement which increased daily and which increased because of temporary military victories of the insurgents." Do you disagree with the author of the report that you can speak of military victories by the insurgents in the month of September 1941?
A: If I may say something in this connection, Mr. Fenstermacher, these orders were not written with the idea that they were to be taken under the lense of an American Military Court in Nurnberg, but they were written with the idea of giving the troops the necessary initiative for their actions, and to describe matters to the troops as was deemed necessary.
As it says here "Temporary military successes of the insurgents", this can be interpreted in various manners. I don't know what Boehme referred to but I would assume that he refers to the fact that the insurgents succeeded in trapping a number of German batallions and in disarming them, and that they succeeded in shooting a number of people in this action. Maybe it was so, I do not know, and I cannot recollect it, Mr. Fenstermacher. Is it thus that in various places military units suffered losses and reverses as consequences of the actions of the insurgents, and that Boehme describes this as a military success of the insurgents. He only means to say that the insurgents gained a success over us, but he does not consider this military operation.
THE PRESIDENT: Mr. Fenstermacher, we will adjourn at this time until Monday, September 22, at 9:30 in the morning.
(thereupon a recess was taken until 9:30 a.m.
September 22, 1947) 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 NUREMBERG, GERMANY, ON 22 SEPTEMBER 1947, 0930, JUSTICE CARTER 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 Carter will preside at this day's session.
PRESIDING JUDGE GARTER: You may proceed, Mr. Fenstermacher.
CROSS EXAMINATION (Continued) BY MR. FENSTERMACHER:
Q. If your Honors please, Field Marshal, did you consider the war against Yugoslavia unjust or an aggressive war on Germany's part?
A. I am of the opinion that the war against Yugoslavia was caused by the change which had taken place in Yugoslavia, and therefore by Yugoslavia herself. And thus by the mobilization which had already started in January or February of that year. It was an emergency situation in which the Reich found itself at that time.
Q. Isn't it true that after the revolution occurred in Yugoslavia the new Government offered loyalty declarations to Germany?
A. I am not informed about anything of that kind.
Q. But you were informed that mobilization of the Yugoslavian army had taken place?
A. I was informed about that and about the fact that an increased number of troops had been mobilized and drafted.
Q. Had those troops been mobilized by the government of Yugoslavia prior to the revolution?
A. That must have been the case because otherwise it wouldn't have been possible that immediately after the revolution our reconnaissance units informed us that my troops faced 15 divisions.
Q. Did you anticipate that the Yugoslavian people would be friendly to the German troops after they marched into Yugoslavia?
A. I had no reason to assume that after armistice had been concluded, any kind of uprising would take place.
Q. Did you believe that these people in Yugoslavia would welcome your troops in their country?
A. The opinions were various on that subject. Part of them might have welcomed the German troops others not.
Q. In any event, shortly after your troops occupied Yugoslavia, many attacks took place upon your supply and communication lines, upon your troops. Is what correct?
A. Shortly after the occupation, it is not known to me. Besides I was not in Serbia at that time. My activities merely started on the 23rd of June.
Q. And had attacks on your troops in Serbia by the 23rd of June taken place?
A. Yes, that is certain, in any case.
Q. As I recall your testimony of last week, Field Marshal, you said that many of these attacks on your troops came from ambush from people who were hiding in the maize fields in Serbia. Is that your testimony?
A. Yes, indeed.
Q. Did you consider an attack from ambush an irregular method of fighting war?
A. Yes, certainly, in that case, because there was no longer a state of war. An armistice had been concluded and the land was completely pacified and peaceful.
If, for instance. Today in Germany on the autobahn from the woods bordering the autobahn, shots were being fired on American soldiers, that would doubtlessly be regarded as an irregular action.
Q. Would those types of attacks be considered illegal attacks if the attackers were clothed in uniform, or wore insignia?
A. Even in that case, yes.
Q. How many years have you been an officer in the German army, Field Marshal?
A. Forty-three.
Q. Did you get training in the rules of war, particularly in the provisions of the Hague rules of land warfare?
A. Yes, on the war academy.
Q. Are you familiar with Chapter 1 of the Annex to the Hague Convention of 1907 which relates to the qualifications of belligerents?
A. Of course I don't know the article in its detail any more, but on a large scale I am conscious of it, yes.
Q. I should like to read to you from Chapter 1 of the Hague rules of land warfare, Article 1, to refresh your recollection on the provisions with respect to the qualifications of belligerents.
"The rules, rights and duties of war apply not only to armies but also to militia and volunteer corps fulfilling the following conditions:
"1. To be commanded by a person responsible for his subordinates.
"2. To have a fixed distinctive emblem recognizable at a distance.
"3. To carry arms openly.
"4. To conduct their operations in accordance with the laws and customs of war."
Does that refresh your recollection with respect to the qualifications prerequisite to belligerent status?
A. I didn't quite get the question.
Q. How that I have read to you the section from the Hague rules of land warfare with respect to the qualifications of belligerents, does it refresh your recollection with respect to the prerequisites for belligerent status?
A. These provisions were known to me, but considering the bands which opposed us, I cannot regard them as belligerents. All prerequisites were missing for this fact and all prerequisites also that were laid down in the Hague conventions. They were not belligerents but they were quite plainly franctireurs and bands. Not one of the four prerequisites laid down here applied, actually, at the time when I was in command in the Balkans.
Q. You say the insurgent forces that opposed your troops in Yugoslavia did not carry their arms openly?
A. Yes.
Q. Marshal, will you look at Exhibit 56 which is in Document Book 2, page 71, of the English and 55 of the German.
DR. LATERNSER: Your Honor, I would like to point out that if anything from laws is submitted, the whole paragraph has to be submitted to the witness because this partial paragraph which has been submitted to the witness may easily cause a wrong picture in his mind.
BY MR. FENSTERMACHER:
Q. I think, if your Honors please, I neglected to read the final sentence of Article 1 of the Chapter 1 of the Hague rules of land warfare, and I should like to read it now.
"In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination 'army'".
Field Marshal, Exhibit 56 is an order of the Military Commander of Serbia, dated Belgrade, 16 September 1941. Will you turn to paragraph 3 of that order? It is on page 72 of the English and I believe 56 of the German. The second sentence in that paragraph begins -
A. May I ask, please, that I may also look at the other pages of this document before I deal with this?
Q. Yes, of course.
A. Yes, I am ready.
Q. The second sentence of paragraph 3. "The fights near Losnica and Krupanj, as well as single enemy operations west of Uzice and near Mitrowica, have proved clearly that these bands are at one with the communists and face us armed and openly an enemies."
Did you ever receive information from the Military Commander of Serbia to that effect?
A. To this effect I did not receive any information from the Military Commander Serbia but may I deal with this sentence for a moment and compare it with the second paragraph of the previous page?
It reads there: "The district area headquarters Nish has permitted the followers of Kosta Petjanec to carry arms. However, the arms must be carried openly."
I emphasize this last part -- "However, the arms have to be carried openly."
Under paragraph 3 it reads that these bands go together with the communists and oppose us openly with arms in hand as enemies.