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.
PRESIDING JUDGE CARTER: Well, the Tribunal is of that opinion, but we do feel that copies tought to be available so that we can follow along on this cross examination.
MR. FENSTERMACHER: We will certainly try to do that in the future, your Honor. This is a document which just arrived and we were not able to get copies in time.
BY MR. FENSTERMACHER:
Q. Field Marshal, you say, then the Rear Army Area referred to here was subordinate to the 11th Army and that the 11th Army was subordinate to you as Commander in Chief of Army Group A?
PRESIDING JUDGE CARTER: Before the question is answered, I believe we will take our afternoon recess.
THE MARSHAL: The Court will be in recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
JUDGE CARTER: You may proceed.
CROSS EXAMINATION (continued)
BY MR. FENSTERMACHER:
Q. Field Marshal, just before the recess I asked you whether the rear army, referred to in the Document NOKW 1902 was subordinate to the 11th Army, and the 11th Army in turn subordinated to you as Commander in Chief of Army Group A?
A. The 11th Army was temporarily under my command as Commander in Chief of Any Group A. This Army had a rear area, but the Commander in Chief of an Amy Group had purely operative tasks, and had nothing to do with the administration of the rear area. That was exclusively the task of the Army.
Q. Were political commisars of the Russian troops captured for the must part during combst, in the operations, or were they taken into custody, generally speaking, in the rear area?
A. I cannot say anything about this, because I cannot recall anything about the capturing of Russian commissars. I cannot recollect having anything to do with Russian commissars.
Q. Do you believe that the 11th Army never reported to you that Battalion Commissar Mahalla had been taken prisoner in Kerkeni, and shot on the 10th of July 1942?
A. I don't believe that the Army ever reported that.
MR. FENSTERMACHER: We will have enough copies of that to go around tomorrow, Your Honor, and it can be offered in evidence then. It can be marked now Exhibit 585-A for identification.
JUDGE CARTER: Why not put it in evidence now and eliminate the cecessity for going back?
MR. FENSTERMACHER: All right. Will you give that copy to the Secretary General then? (last remark to clerk) It is offered as Prosecution exhibit 585.
DR. LATERNSER: Your Honor, I object to the admission of this exhibit, for the following reasons: The exhibit has no connection with any of the defendants charged here. This connection would have to be proved by the prosecution, and that is something different. As long as this has not happened, this piece of evidence has no probative value. For instance, with regard to the defendant Field Marshall List the Prosecution has not proved that this office has issued this report, and that this office belonged to the 11th Army, and the Prosecution has not proved that the 11th Army was at that time subordinate to Field Marshall List. This exhibit has no connection at all, and must therefore be rejected.
JUDGE CARTER: Objection overruled.
Q. Field Marshall, will you look at this next Document, NOKW 843.
MR. FENSTERMACHER: I have sufficient copies of this to go around Your Honor.
Q. (continued) Field Marshall, this is a report of the Secret Field Police, Group 647, for the month of August 1942.
JUDGE CARTER: Is this to be marked Prosecution Exhibit 586?
MR. FENSTERMACHER: Yes, Your Honor; I am sorry.
Q. Do you note the receipt stamp of the 42nd Infantry Corps Headquarters for September 3, 1942?
A. Yes.
Q. The report itself is dated "Local Headquarters, 21st August 1942.
A. Yes.
Q. Now, will you look under Paragraph 4, "Arrests."
"In the period covered by the report a total of 238 persons have been arrested - divided according to the following punishable offenses." That is on page 6 of the original document, I believe. Then a list under Paragraph "a" and beginning with that portion under paragraph "a" which begins, "Others".Members of Red Army 44 Jews and Commissars (turned over to SD) 2" Do you recall whether the 11th Army sent a report to you to the effect that the Jews and Commissars had been turned over to the SD?
A. No.
Q. Do you know what "turning over to the BD" means, Field Marshall?
A. I know this now. At the time I would not have known it. That is completely out of the question that such a report from the 11th Army was at that time directed to me. This is an activityreport of the Secret Field Police, addressed to the Army High Command, and this activity report would. surely have been passed on to the High Command of an Army Group. I must emphasize again and again that an Army Group had at that time purely Operational tasks and this Army Group was formed during an operation, and a part was split up and this part was lead by the newly formed staff of the Army Group, and had only purely operational tasks which had nothing to do with the administration of the rear army area, etc. and was purely taken up with the operations. I do not even know how long the Crimea, was subordinate and how long a time the Army was subordinate. I said the 11th Army was taken away at sometime and transported somewhere else. When and where that took plact I cannot tell you now.
Q. What do you know now that "turning over to the SD" means?
A. In general it is now said that if a person is turned over to the SD that the SD should then execute the person in question.
Q. Field Marshall, isn't it true that the 11th Army had a duty to incorporate in its report to you the most important functions and reports which it had received from subordinate units?
A. I cannot recall that at that time I received any reports from the Army apart from purely operational activities.
Q. You don't believe that the turning over of all Jews and Commissars to the SD would be important enough an incident for the 11th Army to inform you as Commander in Chief of Army Group A about?
A. I just told you the Army group had purely operational tasks and that the other tasks were left to the Army completely independently and without a higher officer, the quartermaster general. The Commander in Chief had in his staff no Quartermaster, for instance. He had only an operational staff.
Q. Now, Field Marshall, will you look at this next document, which is NOKW 848,--
MR. FENSTERMACHER: And when we have sufficient copies tomorrow, Your Honor, we will distribute them. It should be marked Prosecution Exhibit 587.
Q. (continued) This is an activity report of the Secret Field Police Group 647, for the month of July 1942, is it not?
A. Yes.
Q. Will you look under paragraph 3 of that report.
"The Politruk Kaliba Josef, 33 years old, and the Battalion Commissar Mahalla Wassili, 35 years old, were shot by order of the Ic of the XXXXIInd Corps. Both had been hiding with a group of partisans in the stone quarries near Kertsch and had tried to make their way to the coast to the Red Army." Did you receive any information about that incident?
A. This is the same report which we have had sometime previously. The document which was submitted to me, at first, mentioning Politruk Kaliba, was this report. If I didn't receive the first report I wouldn't have received this report.
Q. This report is slightly different, because in addition to a reference to a battalion Commissar there is also reference to Politruk; do you know what Politruk is?
A. In the other report this appears as well: it also said "A Politruk Kaliba and the Italian Commander Mahalla, Vassili,-that is the same report.
A. No, this is quite out of the question that I received such a report.
DR. LATERNSER: I object to the introduction of this document It is not to be admitted because it is cumulative. In Exhibit 586 the same document is submitted, and now the same document is again submitted under Exhibit 587. May I add that Exhibit 586 is an extract from this exhibit which is now being submitted under Exhibit 587. By this means material is cumulative, as we have had occasion to observe in other cases here.
MR. FENSTERMACHER: We will withdraw Exhibit 587 at this time, Your Honors, until we can re-check it.
BY MR. FENSTERMACHER:
Q. Field Marshal, were the communist insurgent units in the Southeast area organized along the same lines as the Russian army?
A. I cannot say that but bandits can never be as fully organized as an army or as parts of an army.
Q. Do you know whether there were commissars --political commissars among the communist insurgents in the Southeast?
A. No. Commissars being political commissars was mentioned here in one document.
Q. Field Marshal, I believe you testified earlier that you had occasion to capture from time to time certain orders and regulations of the communist insurgents in the Southeast. You spoke specifically of communist regulations for the conduct of guerilla warfare having fallen into your hands.
A, I did not talk about that.
Q. Weren't you asked by Dr. Laternser whether you had ever seen any regulations of the communist insurgents for the conduct of bandit warfare?
A. Only these directives of the communist party for the bandit warfare in Serbia.
Q. Did you ever capture any orders issued by Tito to his units?
A. No. At my time, Tito was a completely unknown concept. He didn't exist at that time.
Q. I believe, Field Marshal, you testified that the Commissar Order was never distributed to the Southeast command. Is that correct?
A. I didn't say it. I didn't put it that way. I said that the Commissar Order was not received by Army Group A or was not sent to Army Group A. You are now referring to the Southeast command in the Balkans? 3411
Q. Yes. Was it ever distributed to you in the Southeast?
A. No.
Q. Do you believe that the Commissar Order was confined only to the Russian theater of war?
A. Yes.
Q. We will turn to Exhibit 14 in Document Book 1. It is on page 49 of the English and page 34 of the German. This is the Commissar Order as distributed by the Commander in Chief of the Army, Field Marshal von Brauchitsch on the 8th of June, 1941. Will you turn to the last page of the document where the distribution list is contained? You will note that the 16th copy was sent to the High Command of Army in Norway. Have you any explanation for why the army in Norway received a copy of the Commissar Order?
A. I can hardly give an explanation for that. I can only think that in the extreme North in Petsamo --and I don't remember the name of the other place. I believe there must have been a possibility there of a meeting with the Russian troops. Petsamo and Kirkenes-Kirkenes I mean. On the Fischer peninsula.
Q. You are quite sure, however, that the Commissar Order was never received by you in the Southeast and that there were no political commissars with the communist units in the Southeast?
A. No.
Q. I have just a very few questions concerning your chief of staff, General Foertsch. About how many hours a day did you spend in conference with Foertsch?
A. That was different from case to case. There were no regulations about it, no fixed rule. If something big was to happen, plans for instance to carry out the extention of the Fortress Creata, this might have taken three to four hours, and including interruptions it would probably have taken longer. If that was not the case, it was one hour a day or it may have been two hours, one hour in the morning and one hour in the afternoon.
In the Army high Command these conferences would only take place according to requirements and were not fixed according to any fixed rules. Apart from that, I met the chief for lunch and for dinner.
Q. Was your office adjacent to the office of your chief?
A. No. The offices were in completely separate houses.
Q. Do you know whether Foertsch ever complained to you against certain orders issued by the OKW?
A. Yes, Foertsch repeatedly complained to me about orders from the OKW. We often discussed these orders. If orders arrived which we didn't like and we assumed that they had been just ordered by bureaucrats.
Q. Which orders do you recall that Foertsch protested to you about?
A. I can't remember individual orders regarding which Foertsch complained to me. Against one order the contents of which I do not recall, I protested to the OKW, and then I ordered Foertsch when he went on leave to do the same, because I did not receive a reply to my first written complaint.
Q. Do you remember discussing your order of 5 September 1941 with Foertsch before it was distributed to subordinate units?
A. Of the 5th of September? No, Foertsch was on leave then on the 5th of September.
Q. Do you remember discussing the Keitel directive of 16 September 1941 with Foertsch?
PRESIDING JUDGE CARTER: I wonder, Mr. Fenstermacher, what is the purpose of this examination? It certainly isn't cross-examination.
MR. FENSTERMACHER: I think if Your Honor please, counsel for Foertsch did develop the relationship that existed between List and his chief of staff.
PRESIDING JUDGE CARTER: Well, to the extent that he examined him, I think you have a right to cross-examine him.
MR. FENSTERMACHER: I will be very brief, Your Honor.
BY MR. FENSTERMACHER:
Q. Field Marshal, you have no doubt heard it said that the relationship between a commanding general and his chief of staff is that of a marriage. Have you heard that expression?
A. I for my person have not used this expression somebody else mentioned it. I believe a witness mentioned it here.
Q. Do you think that is an apt description of tho type of relationship that a commanding officer should have with his chief of staff?
A. That depends on the case. There are good marriages and there are bad marriages. In an ideal case, it is a good marriage and then it is as the witness mentioned. I suppose, of course, it can be different.
Q. Was your relationship with Foertsch a happy marriage, Field Marshal?
A. We certainly didn't love each other ardently. There was cettainly a good relationship.
Q. Would you rely on Foertsch's judgment?
A. Foertsch had very good judgment and was a very good and loyal assistant.
Q. Did you respect the advice which Foertsch gave to you from time to time?
A. That again depended on the case. If I thought the advice was good, I took it. If I thought his advise was bad, I rejected it. I remember that Foertsch made a proposal in Serbia on which he had worked out a long memorandum, which he read to me and he was very proud of it and I rejected it out of hand and I told him "My dear Foertsch, we can't do it this way. This is impossible."