Q. General Kuntze, returning how to the matter of reprisals, and particularly the persons who were the victims of the reprisal measures of your troops, is it your position that the persons executed in reprisal for German losses, were captured partisans in every case, and not hostages?
A. I have already stated that according to what I could ascertain, that generally speaking, people were concerned who had either been recognized as active partisans or actively helped persons from bands, and had thus been found guilty, and accordingly had to be treated as franc-tireurs.
Q. Well, what about the orders of List and Keitel and Roehme and Bader to the effect that civilians of all classes of the population were to be arrested as hostages and to be shot if attacks took place in the village from which they were seized? Were those orders unfamiliar to you?
A. Those orders I do not know now in detail, but in my memory it is very difficult to separate what I know at that time and what I know now from the order of Field Marshal List. It can be seen, in my opinion, that he, in order to avoid spilling the blood of people who were not guilty, that is to spare the hostages, he ordered that for reprisal measures primarily people should be taken who had been recognized as helpers of partisans and had then been brought to camps. The order of Boehme of the 10th of October says that as reprisal, hostages or prisoners were to be shot.
Q. There is a difference, then, between a hostage and a retaliation prisoner?
A. Yes, in deed, but a retalitation prisoners had to be considered as hostages at the same time because the order by Field Marshal List says that, first of all, these people were to be taken in case a retaliation incident occurred.
Q. Now, let us think only now of those persons who were taken from all classes of the population as hostages. They were persons who had nothing to do with partisans.
They were not members of the partisan units, They were simply innocent civilians who were rounded up and held as hostages in order to deter the rest of the population from attacking your troops and installations. Were persons of that nature hostages executed so far as you remember while you were Deputy Armed Forces Commander Southeast?
A. No, I cannot remember that such people were executed.
Q. General Kuntze, will you turn to Exhibit 204 in Document Book VIII, which is on Page 30 of the English and Page 28 of the German, This is an order of General Bader for the 21st of June, 1942. Page 30 of the English, Document Book VIII. This is an order of General Bader. Its subject is "The Taking of Hostages." And in the course of this order he outlines in a very detailed manner the procedure for the taking and the executions of hostages. Will you turn to Page 31 of the German, and Page 33 of the English, under Paragraph 2, preparation the last paragraph under Paragraph 2: "The hostages are to be taken from all circles of the population. In the first place, men from 16 years upwards are to be considered." Now, this order says nothing about captured partisans. It talks about hostages taken from all classes of the population. Do you believe that none of these persons were ever executed?
A. I cannot recall any subject case where such hostages were executed. He says further on in Paragraph 3 that the arrest of hostages is permissible only in case no other means are available, and he further says that these hostages have to be closely connected with the circles of persons who are to be intimidated and that hostages are not to be captured indiscriminately, otherwise loyal people who have up till now been inactive would be driven over to the enemy, etc.
Q. Do you believe that persons from all circles of the population , and particularly men from 16 years upwards are always somehow connected with the insurgent movement, and, therefore, they are not hostages at all, but suspects, or in fact, partisans themselves?
A. No, these hostages which Bader means in this order, they were not people who were connected with the partisans. They were just pure hostages.
Q. Were people of that kind ever executed so far as you know?
A. Now, of course, from the documents I know that there is always talks about the shooting of hostages, but it doesn't say clearly whether they were must hostages, these hostages or whether they were retaliation prisoners.
Q. General Kuntze, do you believe that so long as you were Deputy Armed Forces Commander Southeast the only persons who were executed in reprisal for attacks on German troops and installations were captured partisans and not persons who were innocent and hostages who had previously been taken from all circles of the population? Is that your position?
A. Yes, that is my opinion.
Q. General Kuntze, these partisans, after you captured them, you executed those partisans because they had taken up arms against you illegally. That is to say, they were war criminals. They had breached the laws of war.
A. According to the orders which were binding for us they were to be treated as franc-tireurs.
Q. It was illegal for them to take up arms against you?
A. Yes, because they took up arms against us.
Q. You could have executed them for that reason only? It had nothing to do with reprisals?
There were other reasons too because these partisans fulfilled all the orders which are prescribed by the Hague Convention and which made them franc-tireurs, and they were not proper belligerents.
Q. There was no question of reprisal involved in the execution of captured partisans because.....
A. No.
Q. Well, then all the language in the documents saying that partisans were executed in reprisal is wrong because these partisans were executed not in reprisal but simply because they were franc-tireurs.
A. That is difficult to say too. It is just the same as if the losses which the partisans suffered during combat were also counted as retaliation.
Q. By executing captured partisans do you expect to deter other partisans and other members of the occupied countries from attacking your troops? What was your purpose in executing captured partisans?
A. In order to spare innocent blood. This was commanded by Field Marshal List, I believe it was in the order of 10th of October.
Q. Do you expect by executing captured partisans to deter other persons in the occupied countries from attacking your troops?
A. The best proof is the fact that in Serbia after the rigorous measures which, in my opinion, were justified, the country became pacified and that people were detered from going over to the partisans. I know much more now than I knew at that time. Now, I know exactly that Mihajlovic, before the insurrection on which we had to count according to my order of the 19th of March 1942, desisted from starting anything because he told himself that the losses of the insurgents would be so great, for one thing in combat, and for another in reprisal measure, that he couldn't do anything of this kind.
Q. General, perhaps you could give shorter answers to my questions. I asked whether by executing captured partisans you intended to deter future attacks, and your answer is, I take it, "Yes." Did you make sure that in executing these captured partisans....
A. I beg your pardon. I didn't understand you clearly. What do you take for my answer?
Q. That you did expect to deter other partisans and other members of the occupied countries from making future attacks on your troops.
A. Yes, indeed.
Q. Did you make sure in executing captured partisans that you executed those partisans who came from a village in which an attack on your troops had taken place? Or was not that important to you?
A. That was, of course, an important factor, which was also pointed out in all orders also -- in that of Field Marshal List of the 4th of October, that partisans or that these retaliation prisoners had to be taken if in their village or in their district sabotage acts had occurred.
Q Now, suppose there was a band of about a thousand members operating in North Serbia and after combat you captured certain of those partisans. And then an attack upon your troops took place in South Serbia. Would you execute, in retaliation for the attack in South Serbia those partisand whom you had previously captured in North Serbia, no matter whore those partisans originally came from?
A I have never given any orders for executions. The responsible commander was the Commanding General in Serbia and acted according to the principles as they have been mentioned here, which can be seen from the order which he gave.
Q General Kuntze, I'm asking you to take yourself back to that period of time and try to remember what your information was then. If an attack took place in Village "X" would you execute in reprisal only those captured partisans whom you knew lived in Village "X"?
A I have never had to give any orders for execution. That was the concern of the Commanding General, and I am convinced that the Commanding General in Serbia ordered, -- he always made these measures himself, -- that people were taken who were in some way connected with sabotage acts or surprise attacks or anything like that.
Q Bearing in mind, General Kuntze, the fact that reprisal should be proportionate to the act for which they are taken, can you give me a "yes or no" answer as to whether you believe a 50 to 1 ratioris proportionate?
A I have already stated that it depends entirely on tho situation whether a high ratio had to be ordered or not. During tho first days it surely necessary to take harsh measures and that we endeavored to mitigate whenever the situation allowed it. I think I have proved that.
Q Can you imagine situations in which a 100 to 1 ratio would be considered proportionate?
A That figures sounds terrible now. I doubt, if in Serbia it was ever actually carried out, It says so on paper.
Q Can you imagine situations in which a 50 to 1 ratio would be considered proportionate?
A I have already said that I remember one case concerning Bader where he ordered such measures again Communist bands or murderers, and that such measures were ordered.
Q General Kuntze, are you in favor of a flat ratio of 50 to 1 for all cases of attacks upon German troops?
A It is difficult to say that generally. That depends on the circumstances. If a troop like you said just now was attacked in normal combat, nobody would get the idea to take a reprisal measure of 1 to 50 for the losses. But if people are murdered as had been described, in a bestial manner, and, later on, we captured such a band, in that case it is quite justified to take harsh measures. How can we otherwise achieve a deterring effect?
Q Do you believe that the 50 to 1 reprisal ratio is too harsh?
A I said for normal combat, as undoubtedly happened, it is too harsh. However, if a bestial murder occurred and later on, I managed to capture such a band, then I can well imagine that in a difficult situation such harsh measures have to be taken just in order to deter.
Q Would you be in favor of ordering a flat ratio of 50 to 1 for all cases in which attacks upon your troops took place?
A Whether I ordered such a thing? Do you ask mo whether I ordered such a thing? I didn't understand.
Q I'll ask you two questions. First: Did you ever order a flat ration of 50 to 1 for reprisal measures in cases of attacks against your troops?
A No.
Q Do you know whether troops subordinate to your command ever did execute reprisal measures at the ratio of 50 to 1?
A No, I don't know that either.
Q You don't know that? And if you had heard that your troops were executing persons at the ratio of 50 to 1 would you have issued orders for them to stop doing it?
A I have already said that again depends on the situation. In such a situation.
Q General Kuntze, let me interrupt. I thought I made myself clear. If you found out that troops under your command wore executing at a ratio of 50 to 1 in all cases of attacks upon German troops, would you have issued orders prohibiting them from doing that in the future.
A Yes, I would have done it, if General Bader, through the fact that he restricted orders of reprisal measures for himself, had not prevented me from doing any such thing.
Q General Bader prevented you from taking measures against a 50 to 1 ratio? General Bader was subordinate to you.
A No, you misunderstood me. I said I would have taken restrictive measures if General Bader, on his own initiative, had not ordered that reprisal measures were not to be ordered by the troops but only by him. Through this he alone had the power to restrict the extent of reprisal measures.
Q So you don't believe General Bader over permitted the executions at a 50 to 1 ratio?
A I have repeatedly said that General Bader, in one case, himself ordered that such reprisal measures should be taken. That was an exceptional case, the case of that Communist murder band. Other cases arc not known to me.
Q General, you yourself, in your order of 19th of March 1942, suggested a reprisal ratio of 100 to 1. Do you mean that ratio should be applied in case of every attack upon German troops?
A No, that was not an order at all; it was a decree which begins with "May", and it mentions examples. One can see it's a flexible measure. The whole order, which is very sharp, was issued at a time when one had to assume that in the near future there would be considerable unrest in Serbia, with the consequences well-known to us, and for that reason this order contained those sentences, and even today I do not know how it happened because all these directives which contained this ratio are a summary of orders issued by the OKH.
Q What do you moan, General Kuntze, in mentioning 100 to 1 reprisal ratio in your order of 19th of March 1942? Did you moan that that ratio would be applied in all future cases of attacks upon your troops, or did you leave it up to your subordinate commanders whether they should apply that ratio or not?
A In connection with the previous questions, I have to say the following. We are here concerned with the deterring measure, in view of the sabotage acts of the bands which were to be expected at that time, and it contains, and I think I remember it almost literally, "If the guilty are not captured, then retaliation measures of a general nature may be applicable. For instance, shootings ratio may be ordered; for instance, 1 to 100"
Q And if that ratio had been applied by troops subordinate to your command, you have not have been surprised and you would not have objected?
A No. That again depended on the situation. I say thank goodness that the situation on which we counted in that time did not, however, occur. The situation remained peaceful in Serbia, and the reports also show to what extent retaliation measures became necessary. Fortunately there were only a very few cases.
Q Now, General Kuntze, your troops also took reprisal measures against certain villages. Suppose a village quartered partisans for single night. Would you have permitted your troops to burn down that village in retaliation for the quartering of partisans?
A That is a purely theoretical question which I answer to the effect, just as theoretically, of course not; because if, as happened frequently, a village had to quarter bandits, because otherwise they would have shot all the inhabitants, then of course it would be wrong to order such retaliation measures against this village. However, as happened frequently, if villages were nests of resistance of bands-that is, bands were quartered there, they gave them food, they got munition for them, they looked after their communication, If it had been ascertained that the majority of the inhabitants voluntarily went over to the partisans, then I can well imagine a situation where the responsible military commander had to order retaliation measures of that kind.
Q Suppose the Partisans forced themselves on the inhabitants of the village and under duress made the inhabitants furnish them with food and quarters, would you then have been in favor of burning down the village in reprisal for the furnishing of food and the quartering of those partisans?
A No.
Q Did you ever hear of cases in which the partisans did force themselves upon the population?
A I did not hear of such individual cases, of course. I only know from the reports that partisans also issued a number of terror measures just in order to frighten the inhabitants and to get recruits.
Q Suppose, General Kuntze, there was a combat action between your troops and partisan units in the vicinity of a given village. Would you have been in favor of burning down that village in reprisal for the attack which had taken place near it?
A If it had been ascertained that the village had nothing to do with the whole combat action, no military commander would ever have given orders to burn such a village.
Q Would you ever have ordered the burning down of a village in reprisal where there was a shot from a single house in a village?
A No.
Q You recall the testimony of one of the Greek witnesses, perhaps, who said that the partisans never defended villages because they feared that the village would be burned down if they had been quartered in it and since they came from that village they didn't want their relatives to suffer. Is it true or isn't it that the villages in the southeast area were not defended but that the attacks upon your troops took place in fact away from the villages?
A It can be seen from a report the witness was talking of a period which was long after my time in the Balkans.
Q You don't believe that situation applied earlier?
A Villages were defended by the robber bands which were somewhere near North Salonika and there, for instance, the village of Selli was defended.
Q General Kuntze, I would like to return for just one very brief minute to the subject of political commissars. Would you take a look at this document please?
Document NOKW-2195 is offered as prosecution Exhibit 593. General Kuntze, this is an activity report of the Field Gendarme Squad 161a (motorized). This particular exhibit appears to be an enclosure No. 8 to the War Diary of the 61st Division, which I believe you testified was subordinate to your command when you were in Russia with the 42nd Corps. Is that correct?
A Yes, it was subordinate to me for the operations on moon and Ohsel.
Q Do you know what date the division was subordinate to your command?
A I have already said, as far as I remember, from the middle of September to approximately the beginning of October till the command was transferred to Rumania.
Q Are you quite sure that it was not subordinate to you at all during August, 1941?
A I cannot say that from recollection now.
Q Will you look, General Kuntze, at the entry for the 26th which I believe means the 26th of August? It should be on page 3 of your document.
A Yes, indeed.
Q I would like to correct myself. I believe the 26th probably refers to the month of September since later on you will note 27th, 28th, 29th September, 1941. Under the 26th, "Continuation of search - see under the 25th. A fuel depot containing 17,000 liters was discovered and secured. Shooting to death of saboteurs and Commissars."
And then will you turn to the entry under the 8th and 9th of October on page 4 of the document?
"In Camp Arensberg 18 Commissars and Politruks shot."
Then under 11 October, "2 Commissars and 1 Colonel shot in Arensberg."
Then turning to page 5 of the document, the entry for the 14th of October, "1 Politruk shot in Camp Kuiwastu."
Under the 15th, 16th, and 17th, "As 14th September. Squad Commander went as courier to Army to Conastie. 2 Commissars and several soldiers are being shot who belonged to a Russian squad which had landed in the rear area on Orsel and bad ambushed units. 4 Politruks shot in Camo Kuiwastu."
Under the 18th, "As 14th September. 4 additional Politruks shot in Kuiwastu."
Dropping down to the entry for the 21st and 22nd, "In Camp Kuiwastu there was an accident during guard duty. During the change of guard 1 soldier from the Supply Service was shot at after failing to answer upon being challenged four times.
3 Commissars were shot."
Turning to page 6 of the document, the entry for the 28th of October, " A prison camp being set up in Libula. Town patrolling in Hapsaln. 1 Jew and 1 Politruk wore shot."
Did you never hear about the shooting of political commissars and Politruks while you were commander of the 42nd Corps in Russia?
A I have already said that the general command was withdrawn at the beginning of October and was transported to Rumania and this transport took place from Riga, as far as I remember, on the 6th of October.
Q That still leaves one reference to us, the one of the 26th of September.
A May I have another look, please? Is that the entry which starts with "continuation of the negotiations--"
Q Yes, that is the one.
A It says here, "discovery"--I can't read it. It says-
(Another copy was handed to the witness.)
"A fuel depot containing 1700 liters was discovered and secured. Shooting to death of saboteurs and Commissars."
Q You never heard about that?
A No.
Q You heard for the first time here in Murnberg about the execution of Commissars by troops under your command, when you were in charge in tho 42nd Corps in Russia?
A No.
Q. I don't quite understand your answer, General Kuntze. Did you hear for the first time here in Nurnberg about the execution of Commissars by troops subordinate to your command when you were in Russia in charge of the 42nd Corps? You heard that for the first time here?
A. Today I have for the first time read that a Field Gendarme Unit of the 66th Division shot Commissars during the time when the division was subordinate to me.
Q. Now a few questions on superior orders, General Kuntze. Did you ever disobey any orders which came to you from your superior officers?
A. Yes, I did obey orders.
Q. You never disobeyed any orders which you ever got from your superiors?
A. No. If I had not obeyed any order for any special reasons, I would have reported it because that would contradict all military principles. Orders have to be obeyed and executed.
Q. Now you got an order from Keitel to execute persons at the ratio of from 50 to 100 to one. Did you carry out that order or not?
A. As I nave already stated, i circumvented that order as much as possible and I made personal representations to the offices concerned in the OKW.
Q. Did your circumvention never amount to the fact that you disobeyed it?
A. Yes, one can put it that way, that the order was circumvented.
Q. You mean by that it was disobeyed?
A. It was not executed in the manner in which it was ordered.
Q. Did you feel free to disobey orders which you got from your superiors?
A. I beg your pardon, I didn't understand your question.
(The question was repeated by the interpreter.)
A. As I have said, when I got orders which I did not execute, then I reported to the commands concerned the fact that I did not execute the orders.
Q. General Kuntze, you said that you did not carry out the Keitel order with respect to 50 to 100 to one and I am asking you, did you feel free at any time to disobey orders which you received from your superiors?
A. This order could be circumvented because it said in the order that as a rule--and that was a flexible order, that is when the situation demanded it, harsh measures could be taken but one was authorized in other situations to alter the order.
Q. Then it was not an order but it was rather a directive?
A. That is very difficult to separate.
Q. Haven't you already said that when you gave instructions to your troops that were subordinate to you in the language of suggestions, they were only directives which could be followed or not? Now if the Keitel paper need not have been followed in every case, then it too was a directive rather than an order?
A. In the directive, as I gave it, I said the words very clearly that "there may" and for instance - in Keitel's order it says "as a rule" that it is put very much more clearly. However, even this order leaves the possibility that if the general situation changes and the attitude of the population changes, mitigations can be made.
Q. You say then that you circumvented the Keitel order? Were there any other orders which you received from your superiors which you circumvented?
A. No, circumvention is not the right expression. That is, I just interpreted this order differently and as to other orders I didn't no anything.
Q. Do you think Keitel intended you to interpret his order the way you did?
A. Keitel was personally informed by me. He knew exactly that I endeavored to achieve mitigation of the situation in Serbia.
Q. He didn't object to your not carrying out his order to the letter?
A. Of course he rejected at that time a complete alteration of the directive by the OHW, but soon afterwards an order arrived which crossed with my order, according to which prisoners were no longer to be shot on principle, could be used as laborers and that measure was a considerable change and also one of the opinions of the OKW.
Q. Can we put it this way the, General Kuntze, that you never disobeyed an order of your superiors? You might have circumvented them but you never disobeyed them.
A. No.
Q. Well, I don't understand. Is that a correct way of putting it?
A. I said I have executed orders. If I circumvented them, I reported accordingly.
Q. Do you consider a circumvention a disobedience of an order?
A. Yes.
Q. So then to the extant that you circumvented certain orders, we can say that you disobeyed them?
A. I didn't understand the question.
Q. I will put it another way. Did you consider the circumvention of orders of your superiors disobedience on your part?
A. No.
Q. Have you had legal training with respect to the rules of war, General Kuntze, at the War Academy perhaps?
A. No, I did not have any legal training.
Q. Are you familiar with the rules of war?
A. I beg your pardon--the rules of war?
Q. Yes, are you familiar with them?
A. Yes, I am familiar with them.
Q. Did you ever have any legal assistance at your headquarters as Deputy Armed Forces Commander Southeast?
A. In my staff, there were several law counselors.
Q. Did they advise you with respect to the legality of your orders and orders of your superiors?
A. I cannot say that, whether every order reached the knowledge of the gentlemen concerned. Generally speaking, ail orders which were issued by the Armed Forces Commander Southeast went through channels. Whether incoming orders, as far as they were available, got to the knowledge of these gentlemen I don't know.
Q. When you first got to know of the Keitel order of 16 September 1941, what was your reaction? Did you consider that a legal order?
A. I had to assume that an order which came from the OKW had been examined, also, from a legal angle by all the responsible authorities.
Q. You as an officer in the German Wehrmacht had a duty to obey only legal orders, did you not, General Kuntze?
A. Yes.
Q. And you assumed that all orders which came to you from OKW were legal?
A. Yes, I have already stated that.
Q. You never questioned them or asked the advice of your legal advisers with respect to their legality?
A. If an order comes from the OKW, I have to assume that it has already been examined, and I have already states that all important orders within the staff, the departments concerned, that is Department III dealt with legal matters and I had to assume that these orders were being examined.
Q. General Kuntze, you had a duty to obey only legal orders. Does that not involve a duty on your part to ascertain whether the orders which came from your superiors were in fact legal?
A. I believe I did not have the right to examine legally orders from the OKU and nobody would have had that idea either.
Q. Before you issued your order of 19 March 1942, did you consult with your legal advisers as to whether it was within the limitations of the rules of war?
A. Whether the order had been examined also by Department III I cannot say. It took quite a long time to work on it and I'm convinced that I discussed it with the competent gentleman.
Q. And do you believe that you were advised that there was nothing illegal about your order of 19 March 1942?
A. If they had any objections to it, there would have been a note to that effect. I don't believe there was any such thing.
Q. General Kuntze, what would have happened to you if you had disobeyed an order of OKW and it had come to the attention of OKW?
A. If I had disobeyed an order?
Q. Yes, if you had disobeyed an order?
A. Then I would have had to bear the consequences.
Q. What would those consequences have been?
A. That can be various. That could have resulted either in the demotion from the position or to arrest in a fortress or even other things.
Q. Do you recall the document which we introduced sometime ago which was a protest by Colonel von Bothmer against carrying out an order of his superior regarding the execution of hostages? Do yon know if anything ever happened to Colonel von Bothmer as a result of his protest?
A. I don't know that. It was before my time. I never knew Bothmer.
Q. Wasn't Bothmer still in charge of Administrative Sub-Area Headquarters in Nish while you were Deputy Commander Armed Forces Southeast?
A. I didn't understand the question. Would you please repeat it?
Q. Wasn't Colonel von Bothmer still in charge of Administrative Sub-Area Headquarters in Nish while you were Deputy Armed Forces Commander Southeast?
A. I have already said that I did not know Bothmer. I did not make his acquaintance.
Q. Do you recall from that document that Bothmer asked to be replaced?
A. Yes.
Q. Did you ever ask to be removed from your position as Deputy Armed Forces Commander Southeast?
A. That was not necessary because that took piece in any case.
Q. But it didn't take place until quite a while. Did you ever fell that the things you had been asked to do in the Southeast were such that you wished you didn't have to do them and, therefore, asked to be replaced?
A. Nobody particularly liked to be in the Southeast and it was because the tasks t ere were far removed from the regular tasks of a soldier.
Q. Did you ever ask to be replaced because of that feeling of yours?
A. I cannot say definitely "Yes" today. It is easily, possible that during the discussions which I had with Jodl and Keitel I might have put my office at their disposal.