A. Yes.
Q. We will turn to Exhibit 17, Document Book 1, on page 63 of the English, and page 36 of the German. This is a communication from the Military Commander Serbia, Administrative Staff, Belgrade 22 June, 1941, to the Minister-Commissioner of the Interior, Mr. Acimovic.
GERMAN TRANSLATOR: I beg your pardon, what page?
MR. FENSTERMACHER: Page 46 of the German.
You will note in the third sentence of the communication it states:
"Later on these, as well as other criminal elements arrested in the country and Communists, are to be transferred to the concentration camp which you have been directed to erect."
Do you know which concentration camp was erected in Belgrade?
A. No.
Q. Do you know to whom these concentration camps were subordinated?
who was in charge of their administration?
A. They were so far as I can read from the document now, the administration chief of the military Commander Serbia.
Q. You have no knowledge of these camps, when you were the Armed Forces Commander Southeast?
A. No.
Q. Turning to Exhibit 46----
THE PRESIDENT: Our reception is particularly bad up here for some reason.
MR. FENSTERMACHER: Ours is too, Your Honor. Perhaps we can have it checked.
Q. Turning now to Exhibit 46,--in Document Book 2, which begins on page 37 of the English, page 37 of the German---
THE PRESIDENT: Will you repeat that again?
Q. Exhibit 46, Document Book 2, page 47 of the English, and page 37 of the German, and particularly to the second page of that exhibit, which is on page 48 of the English, and I believe page 38 of the German, this is a communication from the Commander in Serbia, dated Belgrade, 11 September, 1941, and it reads:
"Letter from Commander Serbia; Command Staff, Section IA, No. 397/41, Secret; dated 21 August 1941, orders that the prisoners with the troops are to be transferred to Concentration camp Belgrade in order that the troops may be relieved or their responsibility.
This cancels out the local importance of the concentration camp Belgrade subordinate to the Administrative Sub-area Headquarters.
Therefore, effective immediately, the concentration camp will be made subordinate to the Commander Serbia-Administrative Staff and will be designated as, 'Concentration Camp Serbia, Belgrade.'
The Administrative Staff Trill regulate directly the process of taking over of the concentration camp and the inclusion of the Einsatzgruppe of the Security Police and SD. Guarding of the concentration camp as heretofore."
Did you ever receive information to this effect, Field Marshal?
A. No, not that I can recollect. This order was issued by the Commanding General Serbia to his various departments.
Q. Was the Commanding General, Serbia, subordinate to you?
A. He was subordinate to me.
Q. Now will you turn to Exhibit 61 in the same document book, and page 103 of the English, page 82 of the German? This is an order from the Plenipotentiary Commanding General in Serbia, to the 342nd Division, dated 23 September 1941. You will note from paragraph 2:
"342nd Division is to evacuate Sabac by surprise attack on the entire male population between the ages of 14 and 70 and take it to a concentration camp set up by the Division north of the Save. For this purpose, the German troops and officers in Sabac are subordinated to the 342nd Division."
Did you ever hear of the Sabac Concentration Camp?
A. This order reached me as an informational copy, therefore I must have received it. However, I cannot remember it, and, "by a concentration camp to be established by the troops", one should never understand a "concentration camp" like those which existed an Germany, but only a collection camp, and collection is stressed by the word "concentration." In other orders again it reads, "collection camps".
Q. It would be much clearer if they had said, "collecting" camps in this order, rather than "concentration" camps, would it not?
A. Yes, that would have in fact been more correct.
Q. Were the "concentration camps" in Germany referred to as "concentration camps"?
A. No, I don't know.
Q. Now, will you turn to Exhibit 71 in the same document book, which is on page 143 of the English, page 110 of the German--one question first, Field Marshal, What did these collecting camps look like?
A. I have never been in one.
Q. Did you ever hear how they were constructed? Were they made of wood or brick; how many people could they accommodate? Did you ever receive information about these kind of details?
A. No, nothing that I recollect. But the erection of this one collecting camp shows that evacuated houses were to be equipped as their collection camps, but in detail I am not informed about this, and I have never seen one.
Also, I assume that locally there was a difference; sometimes it would have been a large, other times a small camp.
Q. Field Marshall, this report, Exhibit 71, is from the Commanding General in Serbia, to Commander Serbia, Chief of Military Administration, 65th Corps 342nd Infantry Division, and its subject is, "Zasaviza Concentration Camp". You will note in paragraph 2 it says:
"In the proximity of the locality Grn-Zasaviza a camp sufficient for holding some 30,000 prisoners is to be erected first of all in the open air, so that the transfer of the inmates in Sabac can take place by 20 October. In the course of further construction the locality is to be included into the same camp for winter quarters."
Did you ever hear of the Zasaviza Concentration Camp?
A. Not that one; I cannot recollect that particular concentration camp. I heard of the evacuation of those people from Sabac and on the basis of this evacuation I issued a teletype on 4-10 to the effect that a release of all those was to be effected, -- of all of these people who were not under suspicion and who were not guilty, just in order to put all these things right again, because on the basis of a report by my chief, who was at that time in Belgrade. I had the impression that it was necessary to reestablish order here. I thought that the troops had carried out arrests here which exceeded the extent of those who could be accommodated here.
Q. This report is from the Plenipotentiary Commanding General in Serbia, and it is dated 6 October 1941. Who was the Plenipotentiary Commanding General in Serbia at that time?
A. May I say that this is not a report; it is an order. This report was not addressed to me. Instead, the order was issued by the Plenipotentiary Commanding General in Serbia to his subordinate officers, but in the form of a report to the Armed Forces Commander Southeast.
The order in such as we see it hare in the text, I have never gotten it, and I don't think any of our officers have ever gotten it either. The channels would be in this way, that the subordinate officers issue their own orders and take their own measures on the strength of them. If all of these orders would have to be submitted to the superior officers, that would go too far. Details about this matter I do not think wore known to anybody in my staff.
Q. I stand corrected, Field Marshal. It is an order rather than a report, and I ask you again, who was Plenipotentiary Commanding General in Serbia at this time?
A. That was General Boehme.
Q. He was subordinate to you?
A. Yes.
Q. Field Marshal, I believe you said that these camps were not related at all to the German concentration camps. Is that correct?
A. That is how I would picture it. I do not know the concentration camps in Germany either, but here we are merely concerned with the accommodation and the safekeeping of people who might at some time be a danger to the German occupation forces.
Q. We turn to Exhibit 81, Document Book 3, on page 11 of the English and page 9 of the German. This is a report from the Chief of the Security Police of the SD dated Berlin 9 October 1941. Of course, you could not know about the reports which the SD sent, because there is this reference to an event and a situation an Serbia that perhaps you do know something about:
"Collecting camps are installed by the German Wehrmacht in the Save river bend near Mitrevica for the persons arrested in the course of the mopping-up action by the Wehrmacht and also for other arrestees. This camp is being constructed by Organization Todt. It will have an immediate capacity of 50,000 persons, and can be enlarged to hold 500,000 persons. The camp is constructed like the German concentration camps. The direction of the camp is in the hands of the Einsatzgruppe of this Security Police and of the SD."
Did you hear any tiling about the erection of camps in Serbia during the month of October, 1941?
A. I have never heard anything about it. That is a report by the chief of the Security Police where he described a plan for the future, and I do not believe, according to anything which I have heard later, that this camp was ever erected in the form as it is mentioned here, and none of the reports which we see here, show that it was ever established.
I can therefore, only think that the idea existed at one time and that this idea was reported by the Chief of the Security Police, to special officers, and it reads here in actuality. "It should be, and it will be built up". It seems to me just a picture of fantasy that this camp should ever have the capacity of 500,000 people. I can only say that I know nothing about this, and that I must assume with certainty that the camp never existed in this shape or form.
Q. We will turn to the first page of that particular SD report. You will note from the second paragraph of the report, "mopping-up by the German Wehrmacht in the area of Sabac has resulted up to now in the arrest of 22,000 male persons. These are housed in a temporary camp and are at present being screened by a Detachment of the Security Police with the assistance of the Belgrade Police."
Then the next paragraph refers to the reprisal execution of 2100 Jews and Gypsies for the 21 German soldiers shot to death in Topola, and finally, that 800 foreign Jews and Gypsies are taken from the camp in Sabac, the rest from a Jewish transit camp in Belgrade."
I believe that you said that you never knew about a Jewish Transit Camp in Belgrade?
A. It doesn't say anything here about a Jewish Camp in Belgrade. As a reprisal measure, the Security Police are asked to put the necessary number at the disposal but there is no talk about a Jewish Camp. The 22,000 male persons, I could not recollect the number any more, and I would have never thought that it was that high, but as I stated before, the evacuation of Sabac at that time, a great number of male Persons were captured, and on the 4th of October, after I had gained insight into these conditions, I had ordered the release or all of these people who were not guilty in any way.
Q. Will you look at the last line on the first page and the top of the second page: "*05 Jews and Gypsies are taken from the camp in Sebac direct from the Jewish transit came Belgrade." Do you find that?
A. Yes.
Q. You never heard of a Jewish transit camp in Belgrade?
A. No.
Q. Field Marshal, when did you return from the Russian front to your home in Partenkirchen? I believe you said it was in September, 1942.
A. On the 10th of September 1942.
Q. And from that time until the end of the war you remained in Partenkirchen?
A. In the main, yes, in Partenkirchen.
Q. Did you ever hear of the events which were transpiring between. 1942 and 1945 in Dachau?
A. No.
Q. How far is Partenkirchen from Dachau?
A. 120 KM.
Q. How long would it take to travel from Dachau to Partenkirchen on a train?
A. I would think six hours or eight hours.
Q. Field Marshal, in order to put down the uprising in Yugoslavia you ordered...
A. I beg your pardon, Mr. Prosecutor, Mr. Fenstermacher. May I say something else in connection with this last question? In Garmisch Partenkirchen I live in a very isolated manner and only with my family because I knew that all my social activities were under supervision. I had hardly any contact with anybody with the exception of those people whom I have described here already, and in addition with a Geheimrat Dr. Wicker. And none of these people told me anything of events in Dachau. I have a good friend of mine who was in a concentration camp for 7 months near Berlin, and when she returned she would not tell any thing because she said if anything became known she would only be sent again to that camp.
When I asked her how she fared there, she said, "generally speaking, all right," and that's the only thing that I actually ever knew about concentration camps. And in the Winter of 1944, to my extreme horror, I heard for the first time of the enormous figures of extermination of Jews from Geheimrat Wicker, and he told me that as a big secret because he said "if it ever becomes known that I know about it and that you know about it, both of us will be put into a concentration camp by the Gestapo." We lived at that time in Germany, in such a state of terror and dictatorship that a Field Marshal couldn't ever do anything which anybody in any other state and in any democracy would consider a matter of fact and a matter of course. And please take that into consideration when evaluating my statements.
Q. You were threatened with imprisonment in a concentration camp, not a collecting camp?
A. No, Geheimrat Dr. Wicker, who gave me the information about concentration camps said to me, "Look, I can't even say this loudly, I ask you urgently never to say anything about it because if it does become known, then both of us will be put into a concentration camp."
Q. Turning to Yugoslavia. In order to put down the insurrection you ordered your troops to take hostages. Is that correct?
A. Yes, that is the order already existed, and I said an increasing number of hostages.
Q. Did you ever hear that conspicuously high numbers of hostages were executed in retaliation for attacks on your troops and installations while you were Armed Forces Commander Southeast?
A. I heard about reprisal measures in general.
Q. Did you hear that large numbers of hostages were executed as part of German reprisal measures?
A. I can't say now in detail.
Q. What would you considered conspicuously high hostage ratio -10 to 1, 50 to 1, 100 to 1?
A. That's difficult to establish in theory. That, again, will have to depend on the circumstances of the facts, and under certain circumstances very high figures may be justified. In general, I was against the general establishment of fixed numbers, and I, for my part, never established a ratio for this very reason.
Q. Can you imagine circumstances in which 200 to 1 might not be a conspicuously high ratio?
A. 1 to 200 never occurred, and I can only keep maintaining my point of view that in general, I refused to establish any number. Very high ratios that were ordered from above, which for human reasons seemed much too high to me, I have already stated that.
Q. Can you imagine a military situation in which a Commander would find it necessary to execute 50 to 1?
A. That's very high, but it is extremely difficult to say in theory that that should not happen under any circumstances, that's impossible; because the accompanying circumstances can be of such a difficult nature and I believe purely theoretically concerning such a crisis one cannot determine this.
Q. Well, let us take events in Serbia while you were there. Were military conditions so grave from the German standpoint that a ratio of 50 to 1 would be considered too high by you? In individual instances I meant.
A. Generally speaking, too high. In individual cases there might have been a justification for this. This situation in Serbia was in fact very grave and threatening. The situation in Serbia was thus that parts of units were suddenly captured, disappeared, were deported to the mountains. It happened that the complete supply was gravely endangered, a thus the whole occupation could collapse if those ready communication lines did not function any more. I think the importance of the rear communication lines in the Balkans made it very difficult to estimate and it is also very difficult to establish what consequences such an interruption could have.
Q. Can you imagine individual situations in Serbia where a ratio of 100 to 1 might not be considered too high by you?
A. The ratio of 1 to 100 seems to me very high indeed.
Q. Now, Field Marshal, will you explain the procedure the German troops followed when, they took hostages? Who rounded the hostages up, and where were they kept after they were taxed into custody?
A. What the procedure was in detail I do not know. I ordered that in the mopped-up areas suspects should be taken as hostages and that they should be gathered in collecting camps.
Q. What happened if attacks in a particular village from which you had previously taken hostages occurred? What then happened to the hostages from that particular village?
A. In that case hostages which had been taken from such a village could be shot because that had been made known previously to the hostages as well as to the entire population of the village concerned.
Q. How did you inform the hostages themselves and the population of the village from which the hostages were taken that they would be shot? How was that done?
A. That was the task of the troop unit concerned and of the area headquarters concerned.
Q. Do you know how?
A. Normally I think they would be notified by the mayor of the village.
Q. Were people from several different villages kept in a central hostage camp or was there a separate hostage camp for each village?
A. There, again, I cannot recollect details. I would think that it varied. If it was a larger village or a market town then a collecting camp would be setup for that market town. But if they were just isolated farms or hamlets then there would be one collecting camp for several of this kind.
Q. Was it possible that if an attack took place in Village X hostages who had previously been taken into custody from Village Y were shot in retaliation?
A. According to my order that was not to happen.
Q. Field Marshal, is it your understanding that reprisals can be against the civilian population as well as against the enemy troops?
A. Certainly. Reprisals can be carried out at any time when military necessity demands it. I emphasize again that they are not troops with which we are concerned here; they are bands.
Q. Is it true that the reprisals which were taken had to be proportionate to the degree of severity of the attack or for which the reprisal was instituted? That is to say, could the reprisal action be disproportionate to the action for which it was taken?
A. No, the reprisal was to be proportionate to the action committed. Well, again, we have to consider that a reprisal is, fundamentally speaking, the very last means of force taken, and it has to be applied in such a manner that it terrorizes and has a quick effect.
Q. You mean that a reprisal can only be taken as a last resort?
A. Not as a last resort. It is the last means. Quite generally speaking, the last means which one takes.
Q. And did you try other means before you instituted reprisal measures against the occupied peoples of Yugoslavia?
A. Yes. At first we tried propaganda. We tried to enlighten the population. Then, later on, we had small commandos who interfered and only later, when these things were unsuccessful and the insurrection grew more and more, we had to decide to take other means.
Q. Did you believe that the execution of 50 hostages in reprisal for the death of one German soldier was a proportionate measure?
A. I believe I have said more than once, that this ratio seemed high to me and that I was against a general establishment of a fixed number, and that I was also against the ratio of 1 to 50 for reasons of humanity.
PRESIDING JUDGE BURKE: It is my impression that Mr. Denney covered this matter quite thoroughly and completely. There may be an error. I seem to have a definite recollection of it.
MR. FENSTERMACHER: Very well, your Honor.
BY MR. FENSTERMACHER:
Q. When did you leave the Southeast? (Withdrawn) Then did you take over the command of the Army Group A in Russia?
A. Army Group A-- on the 7th of July 1942.
Q. Did you ever receive the Commissar Order while you were in Command of Army Group A in Russia?
A. No.
Q. Did you hear of the Commissar Order while you were in Command of Army Group A?
A. Not that I can recall.
Q. Do you know what....
A. At that time Commissars did not play any part any longer.
Q. And why was that?
A. I have never heard anything about a Commissar during the time that I was in command of Army Group A.
Q. Do you know whether Russian forces had political Commissars attached to their units?
A. Generally speaking, they had them.
Q. Do you know whether those political Commissars were in uniform?
A. I don't know that.
Q. Do you know whether political Commissars were executed by troops under your command when you were Commander of Army Group A?
A. No.
Q. Were you opposed to the Commissar Order?
A. I would have been opposed to it had I known it.
Q. FOr what reasons?
A. Well, for a very natural reason. Why should I apply special laws against a political Commissar who is, legally with his troops?
Q. Did you consider a political Commissar then a regular member of the enemy forces, the same as any other soldier?
A. Yes, he can be that.
Q. Do you consider the Commissar Order which has been shown to you here as an illegal order and a contravention of International Law, as you understand it?
A. I don't know whether I have to say anything in connection with this. I had nothing to do with the Commissar Order, and I don't believe that I'm obliged to give a judgment here about the Commissar Order.
Q. You were opposed to the Order though?
A. I would have been opposed to it had I known it.
Q. Do you believe that no Commissars were executed within the area of Army Group A while you were in command?
A. Yes, I am of that opinion.
Q. Was the Crimean Peninsula within the jurisdiction of Army Group A while you were in command of that Army?
A. Yes, that was later on under my jurisdiction.
Q. What do you mean by "later on"?
A. To begin with, if I remember correctly, it was not under my command. Only later on during the course of operations did it come under my command.
Q. About what date did it come under your command?
A. I can't say that at the moment. But when the Crimea came under my command there were no more fighting on the Crimean Peninsula. At that time the fighting had already long been concluded.
Q. Was the XIth Army subordinate to you when you were in command of Army Group A?
A. The XIth Army was under my command for a period in order to employ it via Kerch in connection with Novoroossisk, but later on it was again withdrawn from my command and transferred.
Q. Do you know when it was withdrawn, from your command, the approximately date?
A. No, I'm afraid I don't. There were several changes at that time.
Q. Field Marshal, will you look at the Document NOKW-1902.
THE PRESIDENT: What Exhibit Number?
MR. FENSTERMACHER: This was no exhibit number, your Honor, it is a cross-examination document. This is a report from town headquarters I to the commanding officer of Rear Army Area 553. Is that correct, Field Marshal?
A. The Comma order of the Rear Army Area 553.
DR. LATERNSER: May I please have a look at the document before any questions concerning the document are asked?
MR. FENSTERMACHER: Certainly.
Q. Field Marshal, this is a report from Town Headquarters 1 to the Commanding Officer Rear Army Area 553, is it not?
A. Yes, indeed.
Q. And do you note that it is dated "Kerch 1 August 1942"?
A. Yes,
Q. Is Kerch on the Crimean Peninsula?
A. Yes.
Q. And do you note the receipt stamp of the Commanding Officer Rear Army Area Administrative Headquarters 553 on the first page of the document?
A. Yes, but it is not recognizable.
Q. Turn to page 2 of the document. At the top of the page it reads: "On the 6th of July, 1942 the Battalion Commissar Mahalla was taken prisoner in Camp Kerken and shot on 10 July 1942. Did this report ever come to your attention?
A. No, I said already on the 7th of July I took over the command of the army group. This occurrance happened on the 6th of July and the report -- that is right -- the activity report dates on the 1st of August, but I did not get this whole activity report. The activity report of the Rear Army Area goes to the Army, not to the Army Group and this report, therefore, this activity report of the Town Commandant was evaluated by the Commandant of the Rear Army Area and the Commander of the Rear Army Area sent the main contents on to the Army, I suppose. I suppose that report of the 6th of July, if it already been reported in detail, would not have been reported again on the 1st of August; but, this activity report or, rather, the report by the Command of the Rear Army Area was would not got to the Commander of the Army Group but to the Commander in Chief of the Army. It is quite out of the question that an army would inform me about these things at a moment when an operation starts, an operation of the extent as it had never exhibited before, in the direction of Stalingrad and the Black Sea.
It is completely out of the question that such a report and such details would then reach the Commander in Chief of an Army Group; and, if in this connection I may say this, it can only be explained that the commissar order which had existed already for a long time with the armies in the East at the time when I took over the Army Group -- I was only exclusively receiving my orders from von Book and instructed with respect to operational activity and the operational situation. No files of any kind were given to me and I had no opportunity to study any files in this short period, but this concerned a large military operation where those things naturally recoded into tho background, and those measures which wore in an entirely different sphere would not oven roach the Commander in Chief of on Army Group or oven his staff.
Q. Is it true that the Rear Army referred to here was subordinate to the 11th Army?
THE PRESIDENT: Mr. Fenstermacher, is this document to be offered in evidence or is it to be marked as an exhibit?
MR. FENSTERMACHER: I think we should mark it for identification now, your Honor, and then offer the number after the 24 hours is passed and I suggest -- we have no copies to distribute to your Honors at this time but it should be marked as Exhibit 585-A for identification.
THE PRESIDENT: 585-A.
MR. FENSTERMACHER: For identification, and we hope to have enough copies to go around tomorrow.
Q. Field Marshal, is the Rear Army referred to here subordinate to the 11th Army?
A. The Rear Army Area was subordinate to the list Army -that is, as far as I can remember now by heart these, command conditions I am now put before a completely different situation and, if I assume the then 11th Army was at that time subordinate to me in the Crimean then the Rear Army Area would be subordinate to this army, to the 11th Army; but the Army Group as such had nothing to do with the Commander of the Rear Army Area because the Army Group had only purely operational tasks and nothing to do -- and was not employed at all with administration tasks and tasks concerning Rear Areas.
PRESIDING JUDGE CARTER: Mr. Fenstermacher, is it your idea that the 24-hour rule applies to cross-examination exhibits?
MR. FENSTERMACHER: I think it does not apply to our showing a witness a document which he has not seen for 24 hours earlier, but I believe it does apply, your Honor, to the actual offer into evidence; that is to say, we can cross examine oh a document which we have not previously shown to the defense, but I believe we must give them 24 hours before we actually offer it into evidence.
PRESIDING JUDGE CARTER: I wouldn't think that was the rule -I don't have it before we, because that would defeat the very purposes of cross examination quite often. It seems to me it ought to be submitted in evidence right during the cross examination; otherwise, if it isn't, what right do you have to examine on it at all?
MR. FENSTERMACHER: I would rather have that statement of the rule, your Honor. The prosecution have been working on that construction. Whether Dr. Laternser has any objection or not, I do not know.
PRESIDING JUDGE CARTER: Unless the rules specifically, provide otherwise. It seems to me it should be permitted in evidence without the 24-hour rule.
MR. FENSTERMACHER: Very well, your Honors.
DR. LATERNSER: Your Honors, I am referring to the 24-hour notice because I do not know that any rule exists which makes an exception in view of any documents so that I also have to insist that the 24-hour rule apply concerning cross examination documents.
PRESIDING JUDGE CARTER: Unless the rule provides definitely to the contrary, I am inclined to the view that Dr. Laternser's position is in error because it wouldn't do much good to hold back cross examining exhibits if you had to give them 24 hours in advance to study over when the very purposes are to the contrary.
MR. DENNEY: If your Honor pleases throughout the International Military Tribunal case and all other cases here, to my knowledge crossexamination documents have never been submitted to defense counsel prior to the time that they were produced in court and handed to the witness. There has been some variation with reference to tho time when these documents were admitted. Some of the present military tribunals hold a view that the documents can only be marked for identification on cross examination and that at the close of the entire defendants' case the formal offer in evidence is to be made.
However, that has no reference at all to tho 24-hour rule. Other tribunals have taken the position that the documents may be offered and received in evidence immediately and I think so far as the question is concerned it has no bearing on the 24-hour rule, but I am not aware of any such provision that Dr. Laternser has just stated.