AFTERNOON SESSION (The hearing Reconvened at 1335 hours, 26 September 1947.)
THE MARSHAL: The Tribunal is again in session.
JUDGE BURKE: You may proceed, Mr. Fenstermacher.
MR. FENSTERMACHER: Thank you, your Honor.
WALTER KUNTZE - Resumed.
CROSS EXAMINATION - Continued BY MR. FENSTERMACHER:
Q General Kuntze, prior to the luncheon we were talking about events in Greece during the time you were Armed Forces Commander Southeast. Let us move on now from Greece to Yugoslavia. Whether or not Greece was quiet, it was certainly more quiet in Greece than it was in Yugoslavia during your tenure. I believe you said that there were three kinds of insurgent groups fighting in Serbia at this time the Communists and the Cetniks and the Kosta Pecanag group that was collaborating with the Germans, is that correct?
A That is correct for the first two groups, but not for the last one. The last one, too, can be designated as an insurgent group.
Q Did the Kosta Pecanag insurgents fight on your side against the Communists?
A The Kosta Pecanag group was an auxiliary gendarmerie and was last combined with the Serbian gendarmerie.
Q And they fought with your troops in order to pacify Serbia?
A They fought partly together with us and for the most part independently in the Serbian Area which was quiet and was cleaned of Communist bands by Kosta Pecanags.
Q But the Pecanag group never did fight against your troops. You didn't have to worry about attacks from them.
A I do not recall any report that Kosta Pecanag people fought against us.
Q Now I believe you also said that these insurgent groups never wore any insignia.
Is that true for the whole time during which you were Deputy Armed Forces Commander Southeast, or just for a portion of the time?
A I beg your pardon, I was either misunderstood or I did not express myself clearly. I did not say they did not wear any insignia but I said they did not wear any insignia that was clearly recognizable from a distance, as is prescribed by the Hague Conventions for Land Warfare. A great number of reports were stating that the Communist bands wore a Soviet star on their fur caps and that the other partisans wore a Serb coat-of-arms or some stripes on their arm.
Q Couldn't you see the star on their caps from a distance?
A No, I personally was not engaged in any fight with the partisans but such a small red star on a black cap is only visible from a short distance, or few meters; I know out of my own experience that the clothing of the partisans was at that time peasant clothing; even if here and there they are described as wearing dark uniforms, it is not correct. The whole population in the country wore dark clothes and the male population, almost throughout, a high fur cap.
Q Your troops used camouflage on occasion, didn't they?
A During fighting of course camouflage is being used but it is obvious that in a military unit a troop is recognizable by the whole equipment which they have; otherwise, for an artillery observer, for instance, it would be impossible even during normal fighting where the front line is. You can see that by the equipment and by the manner it is carried and you can thus distinguish whether you have a friend or foe in front of you.
Q But the whole purpose of camouflage, General, is to come up upon the enemy without his knowing it and to get within a very close distance of him before he is aware of your presence, isn't that true?
A The purpose of camouflage is one of protection against air attacks and against artillery. Everybody who has ever been at the front know it. For infantry purposes possibly the best camouflage is in use.
Q Now, suppose these insurgent bands did not wear insignia withdraw -- suppose the bands did wear insignia, when they fought against your troops, would you have treated them any differently upon capture?
A No, in spite of insignia they would have remained Franctireuers because the other prerequisites of such a formation or group which would make such a group a regular troop, did not apply in that case.
Q General, didn't you say...weren't you of the opinion on one occasion that if insurgents did not wear insignia -- withdrawn -weren't you of the opinion on one occasion that if the partisans did wear insignia, then they would not be considered Franc-tireurs?
A No. As far as I remember, I have always emphasized that the most important prerequisite for the recognition of a regular troop on the part of the Germans and Allies - the Italians and the Croats and even of the Allies, that is, American and the English, etc., these were people who, after a very clearly defined capitulation agreement, still fought and were therefore Franc-tireurs.
Q General, do you remember being interrogated before you were indicted in this case?
A Yes, indeed.
Q Do you remember being interrogated on the 6th of March 1947 and being asked this question and giving this answer:
"Q. Did, according to your memory, the partisans wear badges?
"A. No."
Do you recall being asked that question and giving that answer?
A. I cannot remember now this particular form of the question and of my answer. This interrogation was made at that time without my being able now to call a witness for it, without counsel, and I was at that time, asked why one regarded those partisans as insurgents and the insurgents as partisans; and, as far as I remember, I said they had to be regarded and treated as insurgents because they were not members of a regular army.
Q. General, you were not threatened in any may during the interrogations, were you?
A. Pardon?
Q. You were not threatened during your interrogation?
A. No, no.
Q. You were not promised that if you did not answer the questions something harsh would happen to you?
A. No; that was not the case.
Q. And at the time these interrogations were conducted you were not indicted, were you?
A. No.
Q. Now, do you recall being asked this question and giving this answer on the same day, 6 March, 1947:
"QUESTION: Does the absence of badges make a big difference in the struggle against the partisans?
"ANSWER: Yes. If the partisans had worn badges they would not have been partisans."
A. Well, I can only say that the interrogation couldn't have been taken down properly because it is quite obvious that the prerequisite was that the insignia which was to be regarded as a proper insignia would have to be recognizable from a distance.
Q. General, would you turn to Exhibit 137 in Document Book VI, Page 19 in the English and Page 14 of the German? This is a report of the 342nd Infantry Division for the 1 November 1941. Do you recall that on that date the 342nd Infantry Division was subordinate to General Boehme in Serbia?
A. Yes, indeed.
Q. And on the first of November you had already assumed the duties of Armed Forces Commander, South-East?
A. Yes, indeed.
Q. Look at Paragraph 10: "The insignia of the various units has not changed. The Cetniks as a rule wear on their lamb fur caps a Serbian cockade and underneath it a skull and cross-bones. The Communists bear on their headgear a red star, sometimes below it a arrow strip of ribbon in Yugoslav colors with the Serbian emblem of hammer and sickle and also plain red stripes. Armbands with the word "Partisan" written on them were encountered. Leaders often wear in addition tassels in their caps: The Cetniks, gold-colored ones, the Communists, red ones."
Now, is it your opinion that this insignia could not be seen from a given distance?
A. Yes, I am of that opinion.
Q. Now, will you turn to Exhibit 149 in the same document book at Page 57 of the English and Page 45 of the German? This is a report of a subordinate unit dated 20 November 1941 and in the second sentence it says: "In a short, violent exchange of fire, six Communists were shot. They were fully uniformed."
Now, if these insurgents were in full uniforms, I take it those could have been seen from a distance by your troops?
A. Yes; unfortunately it does not say in this report what type of uniform that was. From a number of reports it can be seen that their first and foremost interest was -- that is, those of the Communist Partisans - to discard the uniforms of the German soldiers which fell into their hands and to wear them themselves. That one cannot regard such an opponent as a regular soldier is quite obvious.
For instance, I remember another report where the Serbian Auxiliary Guards had arrested a partisan who wore a German uniform, that of a non-commissioned officer, and he can also be regarded as fully uniformed.
Q. And you believe the reference in this document to the Communists being fully uniformed means to a uniform of the Serbian Gendarmerie. Why would they have been shot if they were wearing the uniform of the Serbian Gendarms?
A. Because the right to wear a Serbian uniform was only given to the Serbian Gendarmerie and not to the insurgents.
Q. And you believe these Communists mentioned here were given a summary court martial before they were shot?
A.It says hero in a short combat fire six Communists were shot. So you can assume they were shot in combat. And the regulation for frontier says that they are to be shot in combat and if they are taken prisoner while combat rests they have to be given a court martial.
Q. In any event, no matter what insignia these insurgents wore you would have still treated them as franctireurs?
A. They had to be, for the reasons which have been mentioned here repeatedly, regarded as franctireurs and treated as such.
Q. General, you are familiar with the requisites for belligerent status laid down in the Rules of War of the Hague Convention?
A. Yes.
Q. And in addition to the requirement for wearing insignia there is also a requirement to the effect that the units must be organized in a military way and led by responsible leaders. Do you recall that provision?
A. Yes, indeed. The Hague Conventions say approximately that a common leader has to be in existence to whom all the units are subordinated. I think the most important point is the actually existing responsibility of a leader over those units.
Q. You believe that the Hague rules say that there must be a common leader or a leader of all the insurgents? General, don't those rules simply say that each particular or individual unit has to be led by a responsible leader?
A. I don't understand it in that manner. There must really be a superior leader, high authority, who combines under his command, the responsibility for all units and to whom these units are obedient.
Q. Now, were these insurgent units that you faced in the South-East organized in fact along military lines? Did your intelligence tell you that there were companies and battalions and regiments among these insurgents?
A. Occasionally there might have been reports stating that they were combined in a kind of company. That might apply, but how these reports regarding organization are to be evaluated can best be seen from the big report regarding the Mihailovic Movement which was issued by the OKH and which is also available amongst the documentary evidence.
It says there, for instance, that the Mihailovic Movement has 26 Army Corps and 115 Brigades and that the brigades again are sometimes two to three companies strong. Even if the designation here is the same as used in military language for a regular army, it cannot be applied according to the facts as I have described them to these organizations here.
Q. Turn to Exhibit 152 in Document Book VI, Page 65 of the English and Page 51 of the German. These are excerpts from the War Diary of the 113 Infantry Division which, as you know, was subordinate to General Boehme and later to General Bader.
Will you look at the entry in the War Diary for the 5th of December 1941 on Page 51 of your Book and Page 65 of the English? You will note there in the second sentence: "The leader of the Third Partisan Company of the Cacak Battalion was also arrested."
Doesn't this mean that as early as the 5 December there were recognizable military units among the insurgents?
A. No. Through the fact that some band gives itself a military designation, it cannot be concluded that this band now becomes a regular unit.
Q. Look at Exhibit 139 in that same Document Book VI on Page 22 of the English and Page 16 of the German.
This is a portion of your report as Wehrmacht Commander, South-East, dated the 2 November, 1941, and you will note under Paragraph 6-B you talk about carriers of the revolt in Serbia. Under Sub-paragraph 3 -
A May I please have the number again?
Q Page 16 of the German, Paragraph 6-B. You talk about carriers of the revolt and under Sub-paragraph 3 you say: "National units of the Cetniks. The Cetniks are a freecorps organized in a military manner." What did you mean by that: "organized in a military manner"?
A This report has been issued just when I arrived there, and not by me, according to the signature. But the remark proves, as we can say now, of our knowledge of the whole situation, that a formation was concerned which had long since existed and which had been moulded into a certain form which they expressly called a freecorps but not a military unit, not a militia because otherwise that expression would have been used, if the expression "militia" had been applicable to the Cetniks.
Q Now, General, weren't these Communist units and Cetniks units in fact the militia of the Yugoslavian government in exile?
A No.
Q Weren't these units established by the Yugoslavian government in exile in order to free Yugoslavia from German occupation?
A No. I don't believe that and I conclude my opinion from the fact that the Communist band developed from freecorps. These formations, these bands, did not develop by order of the Serb government in exile but primarily the Communist bands by order of Moscow.
Q Well -- excuse me; continue.
A (Continuing) That can be seen from the fact that, as director for the activities of the Communist bands, there was not a Yugoslavian directive but the directives of the Communist Party in Serbia.
Q A part of these insurgents were remnants of the old Yugoslavian Army which were not completely disarmed. Weren't they bearers and representatives of the Yugoslavian Government which had gone into exile before signing the capitulation?
A No. There has never been a report to the effect that any complete Yugoslav military unit which would have been called into existence by order of the government in exile had entered combat. They never said, "We are here by order of our government. We are, therefore, a legal formation and we demand a political recognition."
What a clear difference I especially have always made can clearly be seen that I declined to negotiate either personally or through any of my subordinate just in order to make it clear to the opposite side, that we did not regard them as a regular military formation. The whole movement could easily have petered out which, however, did not happen.
If Mihailovic reduced his demands or later on had done it, which they did not do, that was unfortunate. But they were so stubborn and so set on their ideas that they did not want to deviate from their exaggerated demands that there was no basis for negotiations anywhere. I could never have accounted for it to the OKW if I had asked them to meet either Mihailovic or had done it half way.
Q Do you believe then that all the insurgents were illegal because some Yugoslavs had entered into a capitulation agreement with Germany? Is that correct?
A Because the capitulation was signed and there were more reasons. There was the whole manner in which the band acted in that country. This whole manner was in contrast to anything which one might have expected of regular troops.
Q General, there are reports here, as you know, that indicate that the partisans, when they captured your troops, took good care of them and treated them to medical care in their own hospitals?
A Yes. There are such reports but I also know why there are such reports.
Q General, do you consider the war by Germany against Yugoslavia an aggressive war on Germany's part?
A No. I did not regard it as such because, according to my information of the situation, there was a clear breach of an agreement.
Q You considered it a justifiable war on Germany's part?
A I regarded the war as justified.
Q Were you aware of the fact that the Yugoslavian people believed that your war was an illegal war and that your troops were in their country illegally and that, therefore, they could take any measures they deemed proper to throw your troops out?
A No. I was not aware of that. I have often had opportunity to talk to Servs. I will probably now be told that those people to whom I could talk, that they belonged to the circle around Nedic and that they were influenced; but I did meet other people as, for instance, the person of General Nedic who made very clear impression on me and who, I am sure, would have told me something if he had anything to say to that effect.
Q Now, General Kuntze, let's talk for a minute about the way the Communist insurgents were organized. Did they have political commissars among their troops?
A They had political commissars who appeared, as far as I remember, towards Spring.
Q Will you look at Exhibit 196 in Document Book No. 8 at Page 5 of the English and Page 4 of the German? These are regulations of General Bader dated 10 April 1942 and you will note on Page 4 of the German and Page 5 of the English General Bader's description of the uniforms of the Cetniks and of the partisans. Will you look under the partisans and under the subdivision "Badges": Soviet star on the cap indicating rank by means of Soviet star and shoulder stripes.
The political commissar has a sickle and hammer on the Soviet star." What functions did the political commissar serve?
A Pardon me?
Q What functions did the political commissar in the insurgent unit serve?
A I don't know that.
Q The Communist insurgents in the South-East were organized along the same military lines as the Soviet Union, Soviet Russian Troops, were they not?
A I couldn't say anything about that as I have read from the files and from one or two reports there are statements to the effect that they were organized after Russian pattern. There is one report about the fact that partisans had appeared in Russian uniform.
Q This whole insurgent movement in the South-East was dictated from Moscow. Isn't it quite likely that the insurgent military units would be organized along the same kind of lines as the Soviet Russian Troops?
A No. That would have nothing to do with it and there weren't only the Communist partisans but parallel to them there existed a Nationalist movement which developed around about July and maybe even before I started my work in the South-East; and in August, September and October they fought together with the Communists. Later on they separated and this separation actually later on came to a fight between the two parties.
Q Let's confine ourselves for the moment to just the Communist insurgents to the South-East.
A Yes.
Q Is it your opinion that the political commissar who wears a sickle and hammer on the Soviet Star, that is referred to in this document, is a different kind of political commissar than those who accompanied the Russian Troops?
A Yes, I well believe that, because in the Russian Army the commissars were part of the Army, whereas the commissars here were members of bands.
Q Well, except for the difference in terminology between Russian Troops and Communist bands, the political commissar attached to each fulfilled the same type of duties, did he not? He was indoctrinated with the troop's political ideology, wasn't he?
A That is possible. I don't know what particular function the commissars had. I only know that the Russian commissar had the task of a political and propaganda nature.
Q Let's turn now, General Kuntze, to a few questions regarding the way you treated the insurgents whom you captured. As I understand your direct testimony you say that you shot some of the insurgents in combat, and the ones you made prisoner, you later shot, after giving them a summary court martial. Is that correct?
A Yes, indeed.
Q Wasn't it a foregone conclusion what the verdict of a summary court martial would be?
A It says in the decree about frantireurs, that franctireurs are punishable by death. That does not exclude that persons arrested in a combat area, and regarded as a partisan by the troops, and then put before a court martial, would be found not guilty, if his innocense was established, and that is how the regulations were to be applied.
Q I do not quite understand. Would you tell me again under what circumstances a man might be acquitted by a summary court martial?
A When he was in a position to prove that he was actually not guilty when he was arrested and brought before the court martial
Q If he were found with a weapon in his hand, the court martial would find him guilty and sentence him to death, would it not?
AA man with a weapon in his hand is a franctireur.
Q Why did you bother to give them a summary court martial if your troops found them with weapons in their hands?
A During combat that person would have been shot, and if he was found in possession of a weapon outside of a combat action, then he was to be sentenced in some way.
Q Why did you need a court procedure; why couldn't the captain or the regimental commander simply give an order to have him shot?
A Because such were the regulations.
Q Then you always arrested people who were only suspected of being partisans? Were they persons who were captured without arms in their hands?
A The situation was like this: The franctireur, when actually some combat actions had taken place, and they were in danger not to be able to escape, then they had their weapons, and appeared as peaceful peasants in order to, at a time convenient to them, retaken their weapons, and I have stated that a large part of the losses of the troops was affected by these people who shot from ambush.
Q Suppose there was a peaceful looking peasant in the neighborhood of a combat action and you arrested him because you suspected him of being a partisan, how could ho prove before the summary court martial that he was not guilty? Was he permitted to bring witnesses?
A It was contained in the regulations that witnesses were allowed to be brought.
Q Which regulation is that, General Kuntze? Is that in the documents?
A No, it is not contained in the documents. It is a decree from the OKH which was issued on the 6th of November, 1939.
Q General Kuntze, do you seriously contend that all of the references in these documents to communists being shot after interrogation, and communists having been shot immediately, mean that they were given a summary court martial before being executed?
A It is contained in the same decree, that every troop unit or every regiment should have at least three summary martisla, and should have them prepared in case of combat action, and I must assume, on the basis of the examinations which my supreme judicial adoisor has made, that this regulation was followed.
Q You never received any reports to the contrary?
A No.
Q Will you turn now to exhibit 159 in document book 6, page,I beg your pardon, Exhibit 165 in Document book 7, page 13 of the English and page 12 of the German, you will note there, General Kuntze, a report of the 342nd Infantry Division, dated 18 December, 1941, and you will note the detailed manner in which the report indicates the number of people shot to death as insurgents during combat action, and the hostages as reprisal measure.
From this, as from other reports, it appears that a very strict arithmetical key was applied in the enforcement of reprisal measures by the German troops, and that the losses of the insurgents during combat were deducted from the number of hostages that had to be shot in enforcing the arithmetical ratio. Are you familiar generally with this and the other reports which you received that indicate the arithmetical ratio that was applied.
A This report of the 342nd Division did not reach the Armed Forces Commander Southeast. It is a report made with regard to a battalion which was subordinate to that division for the period from the 26th of September to the 15th of December, 1941.
Q I do not expect you to have knowledge of any one particular report, but don't you remember generally about the enforcement of the arithmetical key during the execution of reprisal measures in Serbia during your time as deputy Commander Southeast?
A I have already testified that the supposed ratio for the retaliations, with few exceptions, was not fulfilled.
I may point out that this report, with which we are just dealing concerning this one battalion where these very high figures appear, that this report goes as far as September, - into September, and I know also that in these documents, these are other reports for the 342nd division, which shows clearly how the figures recede, and that in November and December there are only very few.
Q Let's turn to one in December, look at Exhibit 159, in Document Book 6, page 93 of the English, and page 75 of the German. This is dated 20th December, 1941:
"Reprisal measures carried out from the beginning of the insurgent movements in Serbia up to 5 December 1941."
Then you see the table at the bottom:
"According to the basic key of 1 to 100 and 1 to 50 the following is given as reprisal measures to be executed."
in Then some multiplication, and some addition of the figures.
It is all very well, and in very great detail worked out, until the report continues, "Thus there would be due for further reprisal, 20,174".Are you quite sure the arithmetical ratio was never applied during your term?
A I beg your pardon. Do you mean the ratios?
Q Yes, one to 100, and one to 50.
I believe we have a case here, where General Bader ordered a high reprisal figure, and this case, which according to my recollection occurred in January, concerns a communist murder band which exercised its activities in the Banat. The initially attempts to this band in a mild form were without success, General Bader had to take severe reprisal measures.
Q The prisoners that you took in combat, General Kuntze, some of them were shot after an interrogation, and as you say, after a summary court martial trial, others were retained and sent to big collecting camps where they were later executed at the prescribed ratios in reprisal for attacks which were committed against your troops. Isn't that true?
A No, it was like this. In the collecting camps a screening took place and among the persons which were delivered into these camps, there were of course a great number of insurgents who had been sentenced. When reprisals were to be taken, we took those people for this purpose as I have already testified.
Q Look at Exhibit 175, in Document Book 7, page 48 of the English, and page 39 of the German. This is an order of the 714th Infantry Division dated 15 February 1942. Look at paragraph 3:
"Persons who are encountered in the combat terrain during the fighting are to be arrested and to be investigated, to be interrogated. Depending on the result of the interrogation they are to be released or sent to be competent district headquarters as prisoners for reprisal measures."
What does that mean, - "the retention of prisoners for reprisal measures"?
A Prisoners for reprisal measures means according to the order of General Bader from the 20th of December, these people who were to be taken as reprisal hostages, who, however, were not innocent as the name, "hostages," should indicate, but who were guilty as can be seen from the order.
The Commander of the 714th Division who issued this order, says clearly that according to the result of the interrogation they are to be released, or to be retained and to be brought to the competent district headquarters as retaliation prisoners.
A. Your reasoning is that these captured insurgents could be snot anyway, and it was perfectly all right for you to retain them until a later time and then execute them in reprisal for attacks upon your troops?
A. I don't think it was quite that way, that there was, so-to-speak, a stocking up of these victims, out actually, the retaliations as were ordered, were to follow the offense very closely, and I have also stated that it was my endeavor to mitigate the treatment of prisoners, and in that I was strongly rejected by the OKW, so that nothing was left to me but to take a crooked way instead of a straight one, a fact which for me as a soldier of the old school was very bidder, and I did not do it for my own sake but for the sake of the Serbian population.
Q. General, this order states that, "depending on the result of the interrogation, these men who were captured were either to be released or sent to the prisoner of war camp for reprisal measures". There is no talk here about a summary court martial. It is only a reference to an interrogation.
A. Generally speaking, the expression is "interrogation", even if one talks about a court procedure.
Q. Is it customary to say one thing in German orders and reports, and to mean another, or is this just an exceptional case?
A. I have already stated that unfortunately the expressions are changing here, not only regarding the designation of the prisoners, of the insurgents, but especially in this point. I remember for instance that General Stahl, who later on led the group West Bosnia, said in his report "250 partisans were retained here who are to be sentenced by court martial".
In another report about the same incident from headquarters, under the same date this remark was omitted and instead it said, "after interrogation to be shot". Some time later with regard to an operation to the Bend, there was no talk at all about a summary court martial, but only of an interrogation.
Q. General, will you turn to Exhibit 180 in Document Book 7, it is on page 62 of the English, and page 48 of the German. This is an activity report of the 704th Infantry Division.
Will you turn to page 29 of the German document book and page 63 of the English, to the entry for 16 February '42:
Division publishes decree of the Plenipotentiary Commanding General, according to which all insurgents participating in battle are to be shot. According to this prisoners can only be made in exceptional cases, when an interrogation becomes necessary. After interrogation the prisoners are to be shot immediately. These are to be differentiated from "reprisal prisoners" and "hostages". Do you believe that the interrogation referred to there means "summary court martial"?
A. I must assume that. The whole entry is made in a very brief form.