"The conception 'current matters' is not defined in any military regulations as far as I know and is therefore to a certain extent flexible in its use in staff operation."
7) I shall not read from paragraph 7, but instead, on page 6 of the document, roughly about line 8. It reads:
QThe chief has no right to announce his differing opinion to those above him or to make it know to those below. That would have been a lapse into the "official channels of the General Staff" which were usual in the first World War and the entire elimination of which was the aim of the order issued in 1938 about the abolition of the coresponsibility of the Chiefs and the resulting revision of Dv. g. 92 in 1939.
"The right of the Chief which existed in Ludendorff's time in such cases to record with reasons his differing opinion and to file it, was cancelled by suspension of the co-responsibility of the Chief in the year 1938. Therefore one possibility only remained for the Chief on whose conscience the instructions of his commander weighed heavily; that was to request his release. In so far as it was a question of clear orders from superior offices, such a request for release would have been tantamount to insubordination and would have entailed the lawful consequences of such.
8) The appointment to the position of "Chief", was ordered through the army personnel office by the commander in chief of the army acting on the suggestion of the Chief of the General Staff of the army.
"A "Chief" had no influence on his appointment, he might ask to be recalled in exceptional cases for example for health or other personal reasons."
Then under "8", page 7 of the document, we find: The question as to whether the Chief, on his own initiative, could refuse to carry out orders which reached his command post can be answered in this way that lawfully no such possibility existed."
Your Honors, merely in order to clarify this of the index, this document 13-a is not mentioned in the index because it was inserted later. I would appreciate it, therefore, if the Tribunal in the table of contents would insert after figure "13" which was Exhibit 10, this Exhibit 11 as 13-a, which is called "Sworn Expert Opinion."
I have one question to put to the defendant concerning a typing error which is also in the typewritten original. It is on the first page and it is a mistake which the prosecutor pointed out to me. When the sworn expert opinion starts, it reads:
"I am giving this expert opinion by virtue of my knowledge of conditions of the German Army and my service experience which I gained as Chief of the General Staff of the Army in the period from 1935 to 1942.
Q I ask you, witness, from what time to what time was General Haider Chief of Staff to the Army?
A I cannot give the exact date but I would say as of 1938.
Q So that, in place of 1935, it should probably read 1938?
A "1935" is by no means correct. It can only be a typographical error.
DR. RASCHENBACH: I shall then present Document Foertsch No. 14. That will become Exhibit No. 12. This is an affidavit by General Warlimont which regards the personality of the defendant Foertsch as well as his position as Chief of General Staff and also events which then took place in the Balkans. This document and the next one, those are the two last ones in this document book, will then lead me immediately to the events in the Balkans itself. The affidavit reads as follows, under "1" on page 47 of the English text:
I became acquainted with Foertsch in the twenties, at first during official dealings. I, soon, felt attracted to him, mainly by his equally well developed nobility of heart and mind which, joined with a subtle and indulgent humor, characterised his always sober-minded, outstanding personality.
On this basis grew up in the war years 1942-1944, a cooperation supported by unlimited confidence, also steadily increasing friendly relations. Common interests of a non-military nature, among others in religious, philosophical, historical, literary fields led us to devote always some hours to these interests, on the occasion of mutual official visits, even in time of war."
I will pass over the next sentences and shall continue under figure "2" on the next page of the document:
"Foertsch's influence" - I beg your parson; I do want to read one sentence. I shall only pass over the next sentence and I shall read from the very top of the page 48:
"He hated, from his innermost soul, abuses as he encountered them in the licentious soldiery of the insurgents of the Southeast and in the orders given by Hitler in connection with this state of affairs."
Then under "2":
"Foertsch's influence on his commanders according to my impression was kept principally within the bounds prescribed by his position as Chief of Staff -- that is, first advisor of his Commander-inChief."
One question regarding this to the witness?
Q Witness, what was General, Warlimont's position at that time?
AAt the beginning of the war he was Chief of the department, Land Defense in the Armed Forces Operational Department of the OKW and later his official position was called Deputy Chief of the Armed Forces Operational Staff.
Q I thank you.
DR. RAUSCHENBACH: I shall then continue where I interrupted.
"His counsel was founded on an always serious and most careful penetration of the problems and, even formally, was characterized by an exemplary military attitude. His influence found particular expression in. the effective support of his Commander-in-Chief in their constantly repeated efforts to master the insurgency in the Balkans insofar as possible by peaceful means, to remedy abuses, and, as far as possible, to give all the care imaginable to the suffering population, especially in Greece.
"3.) To official discussions and reports in the OKW, for which Foertsch relatively often came to headquarters, he always brought with him constructive proposals fortified by a thorough study of all interrelations. Furthermore, he took pains, in regular preliminary discussions with me, to gain facts for the most convincing tactics of report, in order to secure the best possible audience and acceptance of his proposals.
Nevertheless, in view of the given conditions, it was even for him as Chief impossible to carry through conceptions opposed in principle to the directives once they were decreed by Hitler. Keitel, in accordance with his perpetual stand, declined to permit even a mere discussion of Hitler's orders. Yet, Jodl, too, received such remonstrances generally without a word and had to deny himself the making of deductions, if it was clear that he could accomplish nothing against Hitler's pleasure."
FOERTSCH, under these circumstances, has repeatedly taken advantage of our mutual good relationship in order to elude HITLER'S orders after all."
The examples which follow I shall later quote in the proper context, when I shall deal with the events concerned during the submission of my evidence.
I shall continue on Page 4 under Numeral 5. I believe that it is Page 4 also in the English document book. That is on Page 50.
"5. To my knowledge, FOERTSCH had made himself unpopular and suspect in party circles through his former activity in the OKW. Particularly GOERING and HIMMLER watched over him, his activity and his influence with an open distrust.
"I remember that at the time FOERTSCH resigned from the Staff South-East in the spring of 1944, HIMMLER submitted a complaint to KEITEL against the conduct of the Staff and that in this connection he mainly suspected the influence and the person of FOERTSCH.
"6. FOERTSCH, in conformity with his character, again and again endeavored to obtain an assignment for op-rations at the front. Aside from his aspiration of being actually enabled to practice his soldierly profession through such an assignment, he has repeatedly admitted to me his leading motive that the subordination of his own conviction and his own will to that of the Supreme Commander - as it is fundamentally required from a Chief - could not satisfy him. He would rather finally obtain a position in which he could say of himself: 'sic volo sic jubeo'".
JUDGE CARTER: My Latin is a little bad. Would you mind translating that?
DR. RAUSCHENBACH: I shall do that. It should read: "As I want it I shall order it," or the meaning is, "At last I can order the way I want to do it."
This brings me to the last document in this Document Book, which is Document 15 and I shall offer it as Exhibit 13. This is an affidavit by Dr. Otto Campe from Hamburg, who was an Ordnance Officer with General von Greiffenberg who was Chief of the 12th Army prior to Foertsch.
That is the witness who was on the witness stand here yesterday. He said the following, and I shall start with the third paragraph; that is the fourth paragraph in the English Text. It begins:
"At the beginning of May 1941 FOERTSCH himself became Chief of the General Staff of the 12th army, replacing GREIFFENBERG, while I, at the same time, became the personal Adjutant of the Supreme Commander, Generalfeldmarshall LIST. During the following period the relationship between FOERTSCH and myself became closer and closer. I can say that, in spite of the difference in rank, it was indeed an amicable relationship.
"The relations between the German occupational troops and the Greek population in 1941 were very good at the beginning, only gradually they grew worse as a result of the mounting difficulties in respect to supply. In personal conversations FOERTSCH has frequently expressed his regret that there were only small possibilities for the Armed Forces to help the Greek population.
"I cannot remember any particulars any longer since in the meantime 6 years have passed and I have no records referring to this matter. However, I can state with certainty that FOERTSCH showed a kind disposition towards the Greek population and had understanding for the hardships which in any case are more or less necessarily arising from an occupation; every act of excess and every offense of theft on the part of German members of the Armed Forces was severely punished" On the third page of this affidavit, last paragraph, I shall continue?
"FOERTSCH knew that I was constantly in contact with General OLBRICHT and that the latter was the center of an active counter-movement. My visit in Belgrade in October 1943 was for the purpose of finding out whether a joint action of all supreme commanders was feasible, an action through which OLBRICHT hoped to influence HITLER. FOERTSCH did not consider it possible to get all supreme commanders under one head, In spite of this however, he did not refuse to cooperate as far as he himself was concerned."
This concludes the presentation of Document Book I and I shall proceed with the examination of the defendant.
MR. FENSTERMACHER: Your Honor, I assume that, in accordance with the previous ruling of the Tribunal, if the Prosecution makes timely application the affiants may be brought to Nurnberg for cross examination purposes, and failing to produce them without due cause shown will give grounds for their affidavits being stricken.
THE PRESIDENT: That has been the attitude of the Tribunal in connection with the Prosecution witnesses and I see no reason why it should not be applicable to the Defense, keeping in mind the difficulties at all times of obtaining these various witnesses and subject to a further motion on behalf of the Prosecution or interested parties.
DR. RAUSCHENBACH: If the Prosecution wishes to cross examine one or other witnesses who have given affidavits, I am certainly prepared to give information where these people can be reached and found. Most of them, in any case, are in the hands of the occupation forces.
BY DR. RAUSCHENBACH:
Q. Witness, I shall now turn again to your actual activity in the South East. What was the task of the army in the South East?
A. when I became chief of staff of the 12th Army the campaign was concluded and only the conquest of Crete was still to be expected. For this purpose the 12th Army had merely to perform auxiliary services through reinforcements, supplies, and too, by putting the Fifth Mountain Division at their disposal. The task of the Army was at that time to occupy the areas which had been assigned to the German troops for occupation and to start with the preparation for the preventing of an invasion.
Q. What was the significance of this task in the framework of the general war events?
A. Seen on a large scale the South East meant three things. First of all, the large southern flank of the Russian thratre of war -secondly -
THE PRESIDENT: Pardon me just a minute. Off the record.
(Discussion off the record.)
BY DR. RAUSCHENBACH:
Q. Will you please continue?
A. Secondly, the route to Africa for supplies and reinforcements; and, thirdly, the air bases for the Eastern Mediterranean area.
Q And what was tho main prerequisite for the fulfilling of these tasks?
A The main prerequisite for the fulfillment of these tasks was peace and quiet in the interior of this area.
Q And how did one attempt to achieve that?
A Through most extensive consideration of the interests and needs of the population, certainly not, as I occasionally heard, through hatred or vengeance.
Q What difficulties did the government face in their endeavor for peace and quiet?
A The difficulties were mainly during tho first time established in two things. Firstly, in my opinion, unfortunate policy regarding the Southeast and secondly, in tho flare-up and increasing of the insurgent movements in the individual districts.
Q What especially provoked these insurgent movements?
A For this fact there were several reasons in existence. There was the already previously mentioned rather unfortunate policy, then the contrast, in the ethnic groups in this area, and finally the help and support from the outside which incited those movements.
Q And what did you regard as the unfortunate policy in that area?
A I can only state here my own personal attitude which I had at that time. I considered tho dividing up of Yugoslavia immediately after the campaign an unfortunate solution, and even if one undertook such a subdivision, I considered the frontier between Croatia and Serbia, a specially poor solution. Besides it seemed to me that the political supremacy which one had attributed to Italy made the general conditions even more difficult. And, finally according to my personal opinion the filling of the posts of delegates and envoys in that area was not particularly well chosen, with one exception, and that is Envoy Altenburg in Athens which I consider proper and adequate.
Q The help and support of the bands from the outside could that be felt from the very beginning?
A Yes. In any case very clearly when the Russian campaign had started.
Q And as a consequence was it mainly and essentially a Communist influence?
A Essentially yes but there were additional motives - the already mentioned contrast of the ethnic group in this area and also purely Nationalistic motives. There were also the unavoidable economic difficulties which were the result of the war.
Q Witness, the witnesses whose affidavits I have presented here and also the Prosecution consider you in a certain respect as an expert, on the Balkans. How long were you in the Balkans?
A From 6 April 1941, that is as Chief of Staff as of 10 May, until the 4 March 1944.
Q In connection with this I would like to ask you to give us quite briefly just as an overall picture the development of these insurgent movements during these three years, just an outline of the main points.
A I can, of course, just do it in large outlines because I have no documentary information available now. I would like to point out expressly that it is quite possible that I make errors especially concerning chronological sequence. But if I picture to myself today the course of events in the various districts, I have the following picture. In Serbia the illegal warfare against the German Armed Forces started with individual sabotage actions, small band operations, with participation of large circles of the population. At that time the Communist and the Nationalist elements were inferior over. In the further course of events, especially in Serbia, the Nationalistic movement, characterized by Mihajlovic, more or less absorbed the Communistic movement. Partly through active fighting, on the part of Mihajlovic and his people, and partly because, according to my experience, the Serbian peasant does not feel inclined off hand toward Communism. Therefore, Tito never played a particularly important part in Serbia. The fighting of the Mihajlovic movement and the always next to it existing band leaders show no uniform increasing lino but rather moves in the form of waves.
These ups and downs were for one reason evoked by the more active combating on the part of the German Armed Forces and on the other hand by the various influences of the forces outside the Southeast area. Until finally Mihajlovic lost ground because the allied support was taken away from him and until finally, out of his basic opposition against the Communist idea, he attempted to attach himself more and more to the German Wehrmacht. A totally different development took, according to my picture, the insurgent movement at Croatia. There were different conditions prevailing there. The contrast were strongly interwoven, and as the witness Dr. Ibbeken described them here, there was a certain rejection of Mihajlovic and his system by the population and above all there wore Italian occupation methods. All these things combined to create in Croatia the soil which the tendency originated from Moskow needed. So we see in Croatia in contrast to Serbia in the time which I could observe a steady increase of unrest.
Not in a fashion that one could, let us say, observe a definite increase of the power of the leading man, Tito, from the population, but rather in the streaming of all elements of unrest in the whole southeastern area towards this Croatian chaos. It is typical that the first reasonably well organized band came to Croatia from Montenegro, and the same influx came from Albania and to a small extent from Serbia.
In Greece the situation again was completely different. Immediately after the campaign, compared with other districts, there was peace there. In my opinion the inconsiderate Italian occupation created the basis of the discontent. It was also striking that in northern Greece, in the areas which today again are talked about, the Communist movement tried to gain ground. They didn't succeed at that time so that in Greece up till about the beginning or the middle of 1943, the situation - always compared with the situation in Serbia and Croatia - was comparatively orderly and quiet.
It showed quite clearly here that the flaring up of the unrest was in connection with events outside of the area, in Africa, in Italy, in Russia. So that just for the Greek area that applies, what in my opinion is significant for the judgment of the whole southeastern area. The conditions of the total events together with the inner and outer inciting forces for the insurrection were the decisive factors and a real initiative of the German military leadership was left no room. In Bulgaria too and especially in the old Bulgarian area, that is in the Bulgarian sovereignty, bands formed too which quite obviously were influenced by Moscow, which however, did not reach a larger stage of development for specific reasons.
Q: How then, did the military leadership in the southeast try to cope with the situation?
A: The military leadership in the southeast, for a period which I can judge, has always endeavored to use as first and foremost means the strengthening of its own troops which actually would have been sufficient for an occupation of a quiet country. This reinforcement was intended to achieve two aims - first of all, to nip the insurgent movements in the bud and not to let them grow, and secondly, in the area which had been cleared and mopped up, to establish there a net of troops as closely woven as possible which would have prevented a reflaring up of this insurgent movement as much as possible.
Q: Of what nature were the counter-forces?
A: The nature of the counter-forces was characterized in individual sabotage acts, band warfare of a small and larger extent and both mentioned factors and methods found the support in the population, at least in large parts of the population.
Q: Did you consider that illegal, that is, in violation of the laws of war?
A: Yes.
Q: Did you ever doubt this your opinion?
A: No, never.
Q: And why not?
A: To me it was always clear and it has always remained clear that the illegality of all these actions could never be doubted for two essential reasons: firstly, Yugoslavia and the Greek armies had capitulated. Secondly, the countries were properly occupied. Therefore, every armed action irrespective of what kind, was a breach of the capitulation conditions and thus a violation of the duties of the population of an occupied country.
Q: Was that the situation during the whole time while you were in the Balkans?
A: Yes, in my opinion, yes.
Q: And how about the Tito units? Would you regard those units as illegal too?
A: I would like to say the following in this connection. Apart from the two basic conditions which I have mentioned the bands never fulfilled the four known provisions of the Hague Convention; i.e. unified leadership recognize ability from a distance, open carrying of arms, and adherence to the usages of war. Also the Tito units which were later on better organized in their nature remained bands and were regarded as bands.
Q: Was the recognition of these units as belligerent units ever considered?
A: Yes, it was considered. It was considered comparatively early. By request of General Loehr on the occasion of a visit to the OKW at the end of December, 1942, I mentioned this problem. At the same time, however, I would like to add the following which seems rather important to me. Firstly, they remained always consideration and motions of the highest military leadership in the southeast to the OKW. I would like to put it this way, it was a dutiful deliberation within our staff. The subordinate commands and units could not have any choice in this question at all. To them, as long as there was no other decision, the illegality of the bands had to be without doubt. The other factor which seems important to me is the following: These deliberations and these presentations to superior headquarters were always based on reasons of necessity and suitability. We have never had any doubt that a legal or international claim of this so-called enemy of ours could possibly exist.
The considerations of necessity and suitability were based on the following ideas. We believed that one could possibly, through such a recognition, at least of parts or of certain areas, prevent the opponents from using their methods which were incomprehensible to the German soldiers and which could hardly be exceeded in their cruelty. And secondly, we wanted to better the fate of those German soldiers who fell into the hands of bands. Their consideration was a legal one. We believed at the time -
Q Just a minute please, a mis-translation, you said "egoistisch", witness
AAn egoistical reason.
INTERPRETER: I understood "juristisch", I am worry. "We had an egoistical reason", not a legal reason, an egoistical reason.
A (Cont'd) We believed that in this manner we would be esteemed higher in our own OKW if this, for the German troops, very difficult fight regarding decorations, assignments, mentioned in OKW reports, etc., could be put on an equal basis with fights in other theaters of war.
DR. RAUSCHENBACH: Your Honor, it is just pointed out to me that there is an error in the translation which I missed before. The witness said there were reasons of suitability and necessity and just there it was translated with "necessity". I believe that it was not actually "necessary" but just "expedient". That is better.
INTERPRETER: All right. Dr. Rauschenbach refers "expedient" to "necessary."
BY DR. RAUSCHENBACH:
Q Did these representations to the OKW meet with success?
A No, also, repeated presentations did not have any success.
Q Who had to decide over the question whether these bandit groups were to be regarded as belligerents, or not?
A Such a decision, in my opinion, could only be made by the supreme military and political authority of the German war machine, certainly not the commander-in-chief southeast.
DR. RAUSCHENBACH: Your Honor, before I put questions to the witness concerning the documents presented by the prosecution I would like to mention two surveys to the Tribunal. This is not supposed to have any probative value. These are just surveys which are supposed to facilitate it for the Tribunal and for Prosecution to follow the procedure. One of these surveys - I had it done in English immediately - is a survey concerning the days which the defendant Foertsch spent away from his office and the second survey is a compilation of all those exhibit numbers of the Prosecution which the defendant at that time did not see at all, or if they did reach his staff he did not see them because he just happened to be on leave at that time.
I think that will facilitate the examination concerning the documents because he will only have to deal with the documents which he knew at that time or the contents of which he was familiar with from other sources.
MR. FENSTERMACHER: Your Honor, I would suggest in this regard that Dr. Rauschenbach put these two documents to the defendant and ask him whether or not it is true that he did not see the following exhibits which are listed and ask him whether or not it is true that the survey concerning the days of his absence from headquarters is true and that then they be formally offered into evidence.
DR. RAUSCHENBACH: That exactly is my intention, to talk about these two informational surveys with the defendant. These two surveys which should only serve as information and should only facilitate matters, I am not quite clear whether they are to be offered as exhibits, but I am glad to follow any suggestion by the Tribunal. I don't intend them as an exhibit. I don't intend them to have any probative value. The defendant will deliver proof during the examination on the basis of the survey and then again I shall refer to these things in my plea.
THE PRESIDENT: It seems to me, Dr. Rauschenbach, that the suggestion of the prosecution might well be followed so that the defendant can either affirm or deny or correct any of his statements there made and then it will be a matter to which the Tribunal can make reference in its later examination and study and final determination of the questions involved.
DR. RAUSCHENBACH: I would have very much liked to give these surveys to the Tribunal while I am talking to the defendant about them.
THE PRESIDENT: Go ahead, you may do so, and offer them in evidence supplemented by the testimony of this witness.
DR. RAUSCHENBACH: Then I shall offer first of all the first information, "for information 1" as exhibit-
THE PRESIDENT: 14.
DR. RAUSCHENBACH: ---as Exhibit 14.
BY DR. RAUSCHENBACH:
Q. Witness, in this survey we start with the year 1941, the 31st of August to the 27th of September, and the reason for your absence is leave. Were you on leave during that time?
A. Yes, my pay book shows these days and the days mentioned here also contain the days of travel back and fro so that the total of my absence is correct.
THE PRESIDENT: Dr. Rauschenbach, perhaps we could shorten the examination concerning this survey and table, Exhibit 14, if you just question the witness as to whether or not ho had examined it and whether it correctly states the facts as there set out.
DR. RAUSCHENBACH: Yes, I am well prepared to do that, Your Honor.
Q. Witness, you know this information?
A. Yes, I saw it last night and I checked it and that its content is completely correct.
MR. FENSTERMACHER: Your Honor, may I ask that the references to proof on this exhibit be stricken Before the document is admitted? You will note the third column of the document relates to the proof which supposedly will be offered regarding the defendant's absence. Now I think it is perfectly all right for the witness to be asked whether he was in fact absent on these particular dates, but the matter relating to the proof is simply argumentation and I think that part should be stricken.
THE PRESIDENT: The Court and Tribunal will give it probative value as it considers it merits and will not be influenced by statements which will not be supported by proof.
DR. RAUSCHENBACH: The second information paper, that would then become Exhibit 15, is a survey, as I have already said, regarding the documents which the defendant Foertsch only got to know during the procedure here.
BY DR. RAUSCHENBACH:
Q You have this information, this second information paper?
A Yes, I compiled it myself.
Q And it is correct?
A Yes.
Q And every document book we go through I shall ask you again which documents you only got to know during the trial here; that is, which documents you did not know at that time. Witness, you have document book I ready, have you?
A Yes.
THE PRESIDENT: Pardon me, Dr. Rauschenbach, do you refer to Prosecution Document Book 1?
DR. RAUSCHENBACH: Maybe it would be suitable if we had a recess now because I am just going to start on these prosecution documents.
THE PRESIDENT: The Tribunal will have to get then and we can got then during the recess period. What document books will you refer to?
DR. RAUSCHENBACH: Today I shall deal with Document Books 1 and maybe 2 of the Prosecution.
THE PRESIDENT: Very well, we will get them during the recess period, and the Tribunal will begin recess.
(Recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
BY DR. RAUSCHENBACH:
Q. Witness, I shall now begin to question you about the individual documents which the Prosecution has submitted as evidence against you. Do you have Document Book No. 1 there?
A. Yes.
Q. Please tell me once again: From when until what time were you in the Southeast as Chief of Staff with the 12th Army and/or Army Group E and F.
A. From the 10th of May 1941 to the 4th of March 1944.
Q. I will now submit to you exhibits from Document Book I which according to my own Exhibit No. 15 is already known to you. After that Exhibits 17, 18, 32, 34, 35, and 38. In addition there are a few other exhibits but we will only deal with them together.
A. Yes.
Q. What about Exhibits 13 and 14, the Commissar Order?
A. I did not know about them either. I only saw them for the first time here in Nurnberg.
Q. I will not draw your attention to Document No. VII Document Boon I, German page 17, English page 20. What sort of document is this?
A. This is an inquiry, and the corresponding reply from the Armed Forces Commander Southeast to the Military Commander Serbia which we had merely received for acknowledgment. I have seen this document.
Q. Exhibit No. 9 on page 24 of the German, page 33 of the English text in Document Book 33 is a Fuehrer Directive. What was the purpose of this directive?
A. This directive, No. 29, from the 17th of May, regulated the channels of Command in Greece.