BY DR. SAUTER:
Q. If I understood you correctly, you shall assume hypothetically that this is going to be proved and -
PRESIDING JUDGE BURKE: That is correct. Then we can eliminate any further discussion about it. That is the assumption upon which the answer will be taken.
A. Witness, if all these facts are proved, it is in my view necessary that the responsible commander-in-chief if faced with such a situation takes measures for the protection of his own troop, for the prevention of such brutalities.
Q. Witness, would you call such partisan units which use such kind of warfare. All this, supposing that this is proved, would you call such partisan units a regular army which can claim the protection of a Hague land warfare convention? I am putting the question because-
PRESIDING JUDGE BURKE: If you put one questions at a time, Dr. Sauter, it may simplify the problem of the witness as well to-
DR. SAUTER: I only want to remind the witness that I am putting this question because during the interrogation of the witness of January 15, 1947, he had uttered an opinion on this.
BY DR. SAUTER:
Q. You know my question.
A. If a unit acted in violation of the laws of war in a manner as has been stated they don't enjoy the protection of the land warfare convention in my view. I say that without knowing the situation in detail.
Q. Witness, during your interrogation on the 15th of January, 1947, you expressed yourself in a skeptical and negative manner regarding some counter measures like for instance the burning down of villages, the shooting at partisan villages etc. If you had been present in the Balkans during the time of the partisan fighting, and if your troops had been exposed to this kind of warfare, would you then as a responsible army leader in the face of such kind of warfare have considered the most severe measures necessary and would you have used them? Or would you also have-
PRESIDING JUDGE BURKE: Dr. Sauter, I think you have already asked one or two questions. Suppose we be content with the answer of the witness on the portion already asked.
MR. FENSTERMACHER: I think that portion of Dr. Sauter's question is wrong on the grounds that any answer would be too speculative on the grounds that it is unclear.
PRESIDING JUDGE BURKE: You may proceed to take the answer to the question.
BY DR. SAUTER:
Q. Witness, would you kindly answer my last question?
A. Yes, I believe under these circumstances, the commander of a troop which is in such a position as I said should take, and would have to take measures which would protect his troops. He is justified in doing that.
Q. What kind of measures, witness?
A. I don't know, that depends on the situation.
Q. Now take the case where your troop is exposed, constantly according to what I have told you here and what we are going to prove, what would your measures be as a responsible army commander?
A. I would take counter-measures.
Q. How?
A. Well I can't tell you how. I can't answer that because I do not know what my task and what my responsibility and what my position is.
I couldn't do that.
Q. General, would you wait then until your investigations would have established who the perpetrators are?
A. Well, that probably wouldn't always be possible.
PRESIDING JUDGE BURKE: Dr. Sauter, it would be a matter of convenience to the Tribunal if you ask questions and don't enter into a controversial discussion with the witness who apparently is doing his level best to tell the situation as he sees it.
BY DR. SAUTER:
Q. Witness, I will repeat the last question. What would you have done as an army commander in such a situation?
A. I have already said, Mr. Attorney, that I cannot answer this question because I don't know which means would be at my disposal. In every situation, according to my theoretical knowledge, it is quite different.
Q. As commanding general, you can't give us any information.
A. No, this information must be based on a definite situation.
DR. SAUTER: I have no further questions to the witness.
PRESIDING JUDGE BURKE: Are there further questions?
BY DR. RAUSCHENBACH:
Q. Dr. Rauschenback for the defendant Foertsch. Witness, when did you leave the Balkans?
A. In May.
Q. In 1941.
A. Yes.
Q. Was there any partisan activity to a greater extent until that time?
A. As far as I know, not.
Q. Did you experience partisan activity on a smaller scale?
A. No, never.
Q. The prosecutor and the interrogator who has been mentioned here have asked you about your views regarding the partisan and the band warfare.
Are those answers only a personal view of yourself?
A. These answers were my personal views and it has been expressed in this manner.
Q. And in your official capacity, you had nothing to do with those questions?
A. No.
Q. When the interrogator asked you, did you have the impression that you were questioned as a kind of military export? Were you questioned about opinions or about facts?
A. The interrogator told mo expressly that because I had been present at various theatres of war, though I had not taken part in partisan warfare, he wanted to hear my personal view, and I have expressed it at that time in those answers.
DR. RAUSCHENBACH: I have no further questions.
PRESIDING JUDGE BURKE: Are there further questions on the part of defense counsel? Mr. Fenstermacher?
RE*CROSS EXAMINATION BY MR. FENSTERMACHER:
Q. If your Honors please, General von Greiffenberg, you must have had some experience with partisans in Russia?
A. Yes.
Q. General, can you conceive of a military situation which would warrant the execution of hostages at the ratio of 100 to 1?
A. I don't know of any such situation.
Q. Can you conceive of a military situation in which it would be necessary to execute hostages at the ratio of 50 to 1?
A. I have no experience in this respect.
Q. I should like to ask you if, as a very experienced man and an old soldier with many years of warfare behind you, whether you could possibly conceive of a military situation being so serious that it would be necessary for you to execute hostages at fixed ratios, say at 50 to 1 or 100 to 1?
A. I can't answer this question like this. That is impossible. I must know the situation and the conditions to do that.
Q. You were asked a few questions regarding the attitude of Fieldmarshal Witzleben and Kluge towards national socialism? You said that Fieldmarshal Witzleben had been killed in connection with the 20th of July, 1944, putsch against Hitler. Was Fieldmarshal Kluge involved in that putsch, do you know?
A. I only know the discussions in the press. I don't know any personal details because I did not talk to Fieldmarshal Kluge.
Q. Is Kluge still alive?
A. No.
Q. Was he executed?
A. No; as far as K know; Kluge committed suicide.
Q. Do you know when?
A. No; I don't know exactly when.
Q. Did you over serve with either Fieldmarshal Witzleben or Kluge?
A. I did not serve under Fieldmarshal von Witzleben; for a time I was subordinate to Fieldmarshal Kluge.
Q. For how long?
A. Just about three months.
Q. You spoke about a regulation stating that army officers had to be qualified from a national socialist standpoint? Are you quite sure that that regulation was not binding until after the attempt upon Hitler's life?
A. I cannot tell you the exact date when this became valid but I only know that an order was issued.
Q. When you were interrogated here in Nurnberg on the 15th of January of this year, I believe you said there was present an interrogator and a stenographer. Was there also present a guard from the prison?
A. I couldn't tell you today. I simply don't know it.
Q. General; I put to you this morning certain questions which were asked of you on that date and certain answers which you gave and I believe you stated that you had been asked those questions and had made those answers, is that correct?
A. Yes, that is correct.
Q. And I believe I further asked you whether the opinions which you stated on that say were - withdrawn. I believe I asked you whether the opinions which you have today arc the same as those which you expressed on that day and I believe you said they were.
A. Yes, they were theoretical, purely personal views without knowledge of the local conditions.
Q. I would like to submit the Commissar Order to you again, General. This is Exhibit 14 in Document Book 1. Will you turn in the German Document Book to page 35; in the English Document Book page 50, your Honors. General, it states here that this is top secret for general officers only. What does that mean -- for general officers only?
A. I can't find that. Here it says only through offices.
Court No. V, Case No. VII.
MR. FENSTERMACHER: I withdraw my question.
DR. LATERNSER : Your Honor, on this occasion I will ask you to make a correction on Page 50 of this document book. On Page 50 it says --- I will put this motion, right now, and we will have a look at the original. I think it is a wrong translation.
MR. FENSTERMACHER: As long as it is a wrong translation we can tell from the original document, and in the meantime I will ask a few other questions.
JUDGE BURKE: Very well, Mr. Fenstermacher, you may proceed.
Q. General, will you turn to page 35 of the German Document Book I. You will note the last paragraph, "You are requested to limit the distribution to Commanders in Chief of Armies or of Air Commands, respectively, and to inform the Junior commanders by work of mouth." What is meant by a "Junior commander"?
A. It doesn't say that here. The text says different.
Q. May I ask you this question, General; it states there in the last paragraph "You are requested to limit the distribution to Commanders in Chief of Armies, and to --
MR. FENSTERMACHER: I will withdraw that question.
I think we will have to wait on this too, Your Honor, until we get the original document.
DR. LATERNSER: Your Honor, it is very regrettable that in such an important matter two very grave mistakes in translation are present.
JUDGE BURKE: We will shortly have a recess and perhaps at that time you may collaborate on the subject matter of the misunderstanding.
Proceed with something else.
Q. General von Greiffenberg, where are you now currently interned?
A. (No response. Witness indicates question not heard).
Q. General von Greiffenberg, where are you currently interned?
A. In Neustadt near Marburg.
Q. And are you well treated there?
A. Yes.
MR. FENSTERMACHER: Except for this one matter rerarding the commissar order I have no further questions on this. May we take the recess now?
JUDGE BURKE: Very well. The Tribunal will stand in recess at this time until 3:15.
(Thereupon a 15-minute recess was taken.)
Court No. V, Case No. VII.
THE MARSHAL: The Tribunal is again in session.
JUDGE BURKE: You may proceed, Mr. Fenstermacher.
MR. FENSTERMACHER: Thank you, your Honor. During the intermission, Dr. Laternser and I put our heads together and with the help of the court interpreters have decided upon some new translation terminology for the classification of German documents. If your Honors will turn to Exhibit 13 in Document Book 1 at page 48 a of the English which is page 33a of the German, I would like to give you the following changes:
At the top of page 48a in the English, the words "Top Secret" should be stricken out, as well as the work "Chefsache" and instead the words "Super Top Secret" should be inserted. The words thereafter may stand.
Dropping down to the left the No. 44822/41, after "top secret" should be inserted "super top secret" meaning that this particular order was not only top secret but super top secret as well. Then in the third line of the order after the numbers of the order and after the works "top secret" the word "chefs" should be stricken and the words "super top secret" inserted.
In the second paragraph of the order, the third line, that sentence should now read: "The Commanders and commanding officers be informed orally." The word "Kommandare" should be stricken.
Then if your Honors will turn to page 48b, the next page, which is 33b in the German, at the bottom of the page, your Honors will note the words "Enclosure to OKW/ WEST/ Department" and some numbers. After the words "top secret" there should be inserted the words "super top secret" and the word "Chefs" should be stricken. This is on page 48b, your Honor, Page 50 of the English. Under "Stamp" the word "Chefsache! (Matter for Chiefs only)."
should be stricken and the words "Super Top Secret" inserted. In the line immediately below that line the word "only" should be inserted after the word "transmitted." That takes care of all the changes in Exhibit 13.
If your Honors will turn now to Exhibit 14, which is on page 50 of the English, and page 35 of the German, at the top of the page, after the words "rubber stamp" the word "super " should be inserted. Then at the top left hand corner of the page after the numbers "44822/41 top secret" the words "for general officers only" should be stricken and the words "Super top secret" inserted. Under the words "rubber stamp" just below that portion the words "for general officers only" should be stricken and the words "Super top secret" inserted. In the fourth line of the order after the numbers "44718/41 Top Secret" the words "for General Officers only" should be stricken and the words "Super Top secret" inserted. In the last line of the order the word "Junior" should be stricken before "commanders" and after the word "commanders" the words "and commanding officers" should be inserted.
On the next page 51 of the English Document Book, still page 35 of the German, at the top of the cage on the right hand side the words "for General Officers only" should be stricken and the words "Super Top Secret" added. That is all the corrections on that document.
I think I should ask your Honors to bear these changes in mind in connection with the testimony of yesterday when I was asking the defense witness what it meant when this order was "for general officers only."
JUDGE BURKE: Very well.
JUDGE WENNERSTRUM: Mr. Fenstermacher, perhaps you are not able to answer, but what excuse is there for such translation? How does that happen to get into a record?
MR. FENSTERMACHER: I think one excuse, your Honor, is the fact that military classification terms are very difficult and there is some disagreement about them. I think another reason in the translation job in this case was so tremendous it had to be given out to several different offices and a considerable number of persons and this particular document, both Exhibits 14 and 15, were done by our Language Division which was not under our direct supervision and while we retain the right to go over and correct translations which were submitted by the Language Division our own staff missed some of those errors from time to time.
BY MR. FENSTERMACHER:
Q. General von Greiffenberg, will you look now at NOKW 484 which is Exhibit 13 in evidence, the second paragraph of that order states that the distribution of the Commissar order should be carried down to Commanders in Chief of Armies or Chiefs of the Luftwaffe only and that commanders and commanding officers be informed orally. Do you know who was meant by Commanders and Commanding officers, what rank those persons held and what kinds of units they commanded?
A. I assume that these meant the commanding generals and the Commanders of independent units.
Q. Would they be persons commanding divisions and corps rather than Armies?
A. No, the Commanders of Armies are already mentioned in the first part of the sentence.
Q Commander of Armies would receive the Commissar's order in writing out they were then to refer it to a subordinate commander; that is to say, Corps and Division Commanders, orally. Is that what this paragraph means?
AAccording to this document that would he the meaning, yes.
Q For how many years have you been a soldier, General von Greiffenberg?
A. As of 1914.
Q Did you serve in the First World War?
A Yes.
Q. And on how many different fronts did you serve in this War?
A In the First World War?
Q No, I mean in the Second World War.
A I was at the Western Front, in the Balkans and on the Russian front.
Q Were you always the Chief of Staff or did you later become a commander of an army?
A. No, I was never a commander of an army.
Q You were always Chief of Staff?
A I was Chief of Staff and before that Chief of a Department.
MR. FENSTERMACHER: No further questions, Your Honor.
JUDGE BURKE, PRESIDING: Are there further questions on the part of defense counsel?
DR. LATERNSER: A question, Your Honor; I have only one question. General, you said in answer to questions of the prosecution that what you testified in your interrogation of the 15th of January is your opinion today, too. I would now like to ask you; am I correct in the assumption that this answer is correct with the qualifications which became clear from my questions?
A Yes, that assumption is correct.
DR. LATERNSER: I have no further questions, Your Honor.
JUDGE BURKE, PRESIDING: Very well, Dr. Laternser. Are there further questions on the part of defense counsel?
(no response) Judge Wennerstrum, have you questions to propound?
THE PRESIDENT:I don't know that I have Judge Carter has some questions and if he does not cover what I have in mind I will supplement them.
JUDGE BURKE, PRESIDING: Judge Carter.
BY JUDGE CARTER: General, can you tell us the approximate date that the British or Canadians entered Greece?
A No, I am not in a position to do that.
Q. Can you tell us with reference to the time, that the Italians attacked Greece? Was it before or after that date?
A I assume that that was before. At least, before the British and Canadians came but I can't give you a date. As far as I remember the attacks of the Italians took place before.
Q Prior to the attack by the Italians Greece was a neutral station, was it not?
A Yes, indeed.
Q. And protected by the rules covering neutral nations?
A Yes.
Q. Now, after the attack by Italy it became a belligerent nation, did it not?
A Yes.
Q And by virtue of that attack it was forced to keep company, so to speak with the Allied Nations, is that not correct?
A Yes.
Q The point I an making then is that the neutrality of Greece ceased to exist at the time of the Italian attack?
A Yes.
Q Well, then, it was no breach of Greece's neutrality for the British to enter Greece after that date, was it?
A No, I don't believe it was, seen from that point-of-view.
Q In other words, then, the action of the Greeks in allowing the English to enter Greece was not the breach of neutrality from the German standpoint that warranted an act of war on the part of Germany; is that correct?
A I do not know of any political ties of any kind but I don't believe it.
Q In other words, at the time the Germans attacked Greece it is your conception that they were, in fact, at war with Greece because of the attack made by Italy; is that correct?
A Yes.
JUDGE CARTER: I have no further questions.
JUDGE BURKE, PRESIDING: Judge Wennerstrum, do you have questions to propound?
BY THE PRESIDENT:
Q Did I understand, Mr. Witness, that you are now an internee?
A Yes, that is correct.
Q And will you state again where you are interned?
A Generals and General Staff Officers are at the moment in a camp of historical division in Neustadt near Marburg. That's a special camp for the historical division.
Q And you are held in a form of prison, aren't you ?
A No, it's no prison.
Q It's no prison?
A No.
Q You are doing some -
A No, it's just a camp where we do historical work for the War Department.
Q Are you at liberty freely to come and go as you wish?
A We have the permission to leave from morning until evening. But we are under obligation to tell them where we are going.
Q You are not under any indictment?
A No.
Q But you are not privileged to go home?
A No. Only the Generals who are under certain indictment at the moment, they are not allowed to leave the camp but the other generals, we, we are allowed to leave the camp during the day from morning until evening, but of course we can't go home.
Q Well, has there been any statement in do to you as to why you cannot go home?
AAs far as I know that's in accordance with an order of the Military Government according to which all Generals and former General Staff Officers are still under a kind of automatic arrest.
Q But no charges have been filed against you?
A No, no.
Q. Now, when this statement was made by you on 15 January 1947 was there a Mr. Otto Kreilisheim present? Do you know him by that name?
A No, I don't know that gentleman.
Q Did he introduce himself, then designate himself as Mr. Otto Kreilisheim at that time?
A No, I don't know his name. I believe he just bowed and that was all. I don't know his name.
Q Were you brought to Nurnberg or was this statement taken somewhere else?
A No, together with several others I was brought to Nurnberg and I remained here for a few days.
Q Was this statement taken in the prison or war it taken somewhere else?
A No, it was taken in one of the interrogation rooms here in the Courthouse.
Q Were you informed that you might have or should have the right of counsel at the time you were interrogated?
A No, that wasn't said but according to the whole tenor of things and the whole situation it was a comparatively light interrogation so I didn't see any cause to ask for counsel.
Q Well, were you given the opportunity to have counsel if you wished it?
A I don't know what the directives are in Nurnberg to that effect. I don't know.
Q. Did somebody tell you at that time that if you wished counsel you might have it?
A No, there was no talk about that.
Q And the interrogator didn't tell you if you wanted a counsel you might have it?
A No, I don't believe that he said that; surely not.
Q You have read this statement over that has been commented upon here. Is everything in the statement that was said at that time?
A I didn't have a chance to read the very last page through but I would assume that everything is true but I didn't read the last page.
Q Well, beginning with the first part; is that the beginning of the interrogation? Was that the first statement that was made?
A Yes.
Q At one point in this interrogation you said that the interrogator told you that he would pass to some general matters and I believe you said that part was about the 15th question.
A Yes, as far as I remember after I have read it again here, I believe that must have been roughly there where he told me "You were not actually concerned there and I would therefore ask you as an unbioased person." Something like that.
Q. Did the stenographer or shorthand reporter leave the room at that time?
A. No, I don't think so.
Q. Did she remain in the room?
A. Yes.
Q. And did you know that she was taking down your answers at that time?
A. I can't say that today but I don't know.
Q. Did you know she was taking down at the first part of your questioning?
A. Yes, I did.
Q. You didn't observe whether she was writing your questions on the latter part?
A. I didn't watch the details but but talked to the interrogator.
Q. Now, where is this room in which you were interrogated?
A. It's one of the rooms in this Palace of Justice. It's an interrogation room.
Q. And what was in the room? What kind of room is it?
A. I believe, as far as I can recall, there was a largish table, a few chairs and no other functional equipment as far as I can recall but I didn't really watch all of these details.
Q. Was this statement made voluntarily? Was there any compulsion or any threats of any kind?
A. No, no. Quite voluntarily.
THE PRESIDENT: That's all.
JUDGE BURKE, PRESIDING: I have no questions at this time. It's possible that at the conclusion of the defendant's case I may wish to ask this witness some further questions. If not, the witness will be excused.
One moment.
DR. LATERNSER: Your Honor, I have no further questions to put to the witness but I would like to state the following: If at a later date, at a later stage of the proceeding, the Tribunal wishes to put questions to this witness and if the Tribunal approves it now, that would have the consequence that the witness will have to remain in the Nurnberg jail until that time. I would therefore like to make the suggestion that the witness may be allowed to return to the camp where he can be reached at any time, if and when the Tribunal wishes to put further questions to him. I am only saying that because I asked the witness to come here and I feel, therefore, kind of responsible for the fact that he shouldn't have to remain for a longer period here in the Nurnberg jail.
JUDGE BURKE, PRESIDING: I shall presently withdraw my request to have him presented at a later date. The witness may be excused.
DR. LATERNSER: Your Honor, I had the intention now to call a further witness but I would like to waive this examination because the testimony of this witness would be in most points cumulative and I would like to avoid that. I, therefore, waive the examination of a further witness.
JUDGE BURKE, PRESIDING: You may, of course, follow whatever course you desire to pursue with respect to calling or not calling the witness.
DR. LATERNSER: Your Honor, this means that we definitely refrain from calling this witness.
JUDGE BURKE, PRESIDING: Very well; if you will state his name for the record and there is no objection on the part of the prosecution he may accordingly be excused.
DR. LATERNSER: This is General Rudolf Konrad.
MR. FENSTERMACHER: The prosecution welcomes the withdrawal of that witness, your Honor.
JUDGE BURKE, PRESIDING: Very well, then, it is an accomplished fact.
DR. LATERNSER: Your Honor, I would like how to interrupt the presentation of evidence of Field Marshal List. I shall present the documents or rather I should like to present these documents when they are complete. Two Document Books have already been mimeographed and translated. The third Document Book, which becomes necessary on the basis of documents which arrived from Washington is at the present time not yet finished but I would like to present my documents in a completed form. My colleague Dr. Rauschenbach is now prepared to start his presentation of evidence so that there will be no delay in the proceedings.
JUDGE BURKE, PRESIDING: I think there can be no objection to the program; Dr. Rauschenbach you may proceed.
MR. FENSTERMACHER: Your Honor. I am wondering if at this time I might make a short statement regarding the policy of the prosecution with respect to pre-trial interrogations?
DR. BURKE, PRESIDING: Would you repeat that, Mr. Fenstermacher?
MR. FENSTERMACHER: I am wondering if I may make a statement at this time clarifying the attitude of the prosecution with respect to pre-trial interrogations and the various -
DR. BURKE, PRESIDING: It appears to be the opinion of the Tribunal that will be unnecessary at this time.
DR. RAUSCHENBACH: Rauschenbach for the defendant Foertsch. Your Honor, I take the liberty now to start with the presentation of evidence for the defense of the defendant Foertsch and if it please the Tribunal I would like to take the following sequence in this presentation.
I shall now begin with calling the defendant General von Foertsch to the stand and question him on his personal data and on his military development and while he is on the stand I shall submit Document Book I to the Tribunal. In connection with this Document Book I have a few questions to put to the defendant and then I shall come to the nucleus of the matter. I don't suppose that there will be any objection to that procedure, that the defendant Foertsch remain on the witness stand while the document books are being presented?
JUDGE BURKE, PRESIDING: You may proceed in such course as you deem appropriate and proper and at such time an objection may be made the Tribunal will attempt to pass upon it. Proceed as you have elected.
DR. RAUSCHENBACH: I shall then call the defendant Hermann Foertsch to the witness stand.
HERMANN FOERTSCH, a witness, took the stand and testified as follows:
BY JUDGE BURKE, PRESIDING: Will you please raise your right hand and repeat after me the oath?
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath)
Very well, you may be seated.
DIRECT EXAMINATION BY DR. RAUSCHENBACH:
Q. Witness, will you briefly give your personal data, that is, your family, etc.?
A. My name is Hermann Foertsch. I was born on 4 April 1895 in Drahnow. Drahnow is in West Prussia. I am married since 1924.