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.
It did not remain effective very long.
Q. Please turn to Paragraphs 4 and 5 of this directive on page 26 of the German text and page 37 of the English Document Book. What do these paragraphs show?
A. From Paragraph 4 it can be seen that the administration of the occupied territories was established by the OKH and Paragraph 5 shows that the Military Commander Serbia, who at that time held this title, was independent. From this independence he only with great dislike subordinated himself to the command of the Armed Forces Commander Southeast. In the course of time this resulted in considerable friction.
Q. Are you thinking about any particular incidents when you talk about friction?
A. Two major incidents, I can remember clearly. One was the establishment of the Nedic government which took place without any previous notification of Armed Forces Commander Southeast, and the second was the question of armament of the Serbian police and gendarmerie. However, there were quite a number of individual cases which I can not remember. I, only have the total impression--quite clearly even to-day-that at that time we had to protest against this condition.
Q. Now, we turn to Exhibit No. 10, German page 27, English page 38, commitment of the offices of Reichsleiter Rosenberg in the Army area.
A. This document I did not know. About the commitment of such an office of the Rosenberg department I only heard when the order was submitted to me here which is to be found in the documents of the prosecution about the allocation of this office of Rosenberg to another staff.
Q. By this do you mean Exhibit No. 68, that's in Document Book II of the Prosecution, page 105 of the German, page 137 of the English Document Book?
I think it is there.
A. I am talking about Exhibit 68.
Q. What can be seen from this?
A. From this can be seen that this detachment Rosenberg was economically and as far as discipline was concerned put under the command of the Commander Southern Greece as of the 1st of October. This became necessary for the following reasons: The Commander of the Serbian Army rear area No. 560 was after the conclusion of the operations in Greece no longer needed. The staff was re-formed into the Staff of the Commander Salonika-Aegean. Thus the Staff was transferred from Athens to Salonika. This detachment Rosenberg was supposed to remain in Athens and now had to receive food, supplies, pay, leave orders, etc, from some other office, in so far as the people who belonged to this detachment were soldiers who had been drafted by the Army. For this reason this detachment was subordinated to the Commander Southern Greece and remained in Athens.
Q. And did this new allocation of the Rosenberg detachment have any kind of effect with reference to the objective tasks with which this staff of Rosenberg was commissioned?
A. No, in no manner.
Q. But the Document 68 says that the Rosenberg detachment is also assigned for discipline. How far could disciplinary measures be taken against this staff?
A. This disciplinary allocation concerned merely questions of military discipline. For example, if NCO Meyer of the detachment did not salute a lieutenant, he had to be punished, or at least be remonstrated with, or if a private of such and such a name came back late from a leave, he had to be punished for that, or if corporal so and so got on some street which was out of bounds there had to be some authority that could punish him or otherwise there would be soldiers who, as far as their physical needs as well as far as their discipline was concerned, lung in the air, so to speak.
Q. From whom then did the Rosenberg detachment receive their commissions? That is, for its activity.
A. I can't say that, but I assume from an office of the Reichsleiter Rosenberg. Certainly not from a military office and not from the Military Armed Forces Commander South East.
Q. Then, in the time which followed, were you at all interested in what this Rosenberg detachment did at all?
A. This detachment Rosenberg, after this bread allocation had been signed by me, so to speak, was altogether forgotten by me. Probably, I must have asked at the time what kind of a crowd is that as one was wont to say - and if I think about it now I remember that I have been told that they make ideological studies or something like that. The detachment Rosenberg I first started to think about at the beginning of 1944. At that time there was a question of saving personnel and the Commander South East in Belgrade got the order to make suggestions how personnel could be saved. Also, as far as non-military 10 0ct.
-A-LU-21-2-Leonard (Int. Evand-Scharf) offices were concerned.
The then case worker, Major Theilig, the 1-D of my staff, came to me and suggested to me to propose that this detachment Rosenberg should be completely dissolved. I was particularly glad to sign this after having obtained the permission of my commanderin-chief, Field Marshal von Weichs.
Q. And was the dissolution of the staff carried out at that time?
A. Not at that time.
Q. Why not?
A. I can't tell exactly but I assume that the OKW could not prevail with its point of view or, perhaps, did not want to settle the matter. I do not know.
Q. Now, after the description of your career and after the descriptions which are contained in the affidavits which I submitted today, one must first of all assume that questions of art and research interest you so much that you had to be interested in the Rosenberg detachment.
A. For such questions I would never have considered the detachment Rosenberg if I had remembered it to be competent. On my own staff, I had an expert for the protection of art, a Dr. von Schoenebeck, and if, officially or unofficially, such questions interested me, I asked this real expert. For example, he made very good summaries, which were disseminated in the entire area, regarding the largest and most important places of art and culture, especially in Greece. He was consulted in questions of fortifications if any points of culture were touched, and he was consulted in all matters which concerned the preservation of art treasures.
Q. Witness, now please look at Exhibit #12 on page 31 of the German and 43 of the English document book. On the second page of it there is an entry for the 11th of April, 1944, and on the 11th of April, 1944, you were described, by Field Marshal von Weichs, as a man who knew the Balkans well.
A. I consider this an affable exaggeration, but I admit that possibly more than many other people I concerned myself with problems of the Balkans because I had to and wanted to concern myself with these problems.
Q. Did you think that the period of three years which you spent in the Balkans would be sufficient to have obtained exact information of the Balkans?
A. That depends on what preliminary knowledge and education one had. For the first time, I concerned myself with Balkan problems when I came down there, and it depends very much on how far one wants to stretch the concept of knowledge.
Q. On page 3 of this document is an entry pertaining to your career, the 1st of October, 1924 - High School for Politics, Did you over visit this school?
A. No, this entry here is a camouflage entry. During this year I was in the officers' school and this is simply a formal entry for budget purposes which has nothing to do with my actual employment.
Q. And now to Exhibits 13 and 14 on German page 33-A, English 48-A and German 34, English 49, with regard to the Commissar Order, During your activity in the South East did you see this Commissar Order?
A. This Commissar Order I saw for the first time in my life in the cell of the Nurnberg jail.
Q. Please look at the distribution list on the document on page 33-A of the German, page 48-A of the English; and page 37 of the German and 54 of the English. Is there any kind of office there which was in the South East?
A. As far as I know, in my opinion, not.
Q. Well, then, was this Commissar Order at all valid for the South East?
A. It never had any application in the South East.
Q. Now, please take Exhibit #15. That is page 38 in the German and page 55 in the English document book. It's the so-called Fuehrer Directive #31.
What importance has this document with reference to the South East?
A. This concerns a Fuehrer directive which gives orders to the Armed Forces Commander South East. Concerning the extension of tasks which Field Marshal List has mentioned and explained here in the witness stand and I can't say anything else myself.
Q. And did it extend your own sphere of work?
A. My own sphere of work, of course, was extended greatly by that but the staff was not enlarged, it only received a naval liaison officer and an air force liaison officer with the necessary clerical workers.
Q. Do you know whether the Military Commander South East, before the Wehrmacht Commander was created, ever received directives from the OKH?
A. The Commander South Greece and the Commander Saloniki-Agean were also created only by this directive. That is, in consequence of this directive. The Military Commander Serbia already existed as an office and I assume had been given the necessary fundamental directives by the OKH.
Q. After the creation of the Wehrmacht Commander South East, did other offices have any influence on the executive authority in the South East?
A. As far as I remember, one can certainly say that about Himmler as far as police matters were concerned. As far as Goering goes, with regard to the Four Year Plan and all kinds of different economic questions, and, as regards the Foreign Office, they had influence with reference to all kinds of matters which I cannot define any better today than I could at that time.
Q. Exhibit No. 17, German Document Book page 46, English page 63, speaks about the setting-up of concentration camps which the Commisarial Minister of the Interior in Serbia received was instructed to erect. Did this order rest on an order from the Wehrmacht Commander South-East as possessor of executive power?
A. No, as can be seen from this document, the Military Commander Serbia, previous to this communication, ordered the establishment of a so-called concentration camp. Even this communication was written before the Armed Forces Commander South-East took over command of Serbia, so that Serbia was taken over by us when this institution already existed.
Q. Exhibit No. 18, page 48 of the German, page 66 of the English Document Book contains entries in the War Diary about shootings of Communists and Jews; under the 5th and 17th of July 1941, were special orders issued by the Wehrmacht Commander, South-East before these shootings took place?
A. No, I cannot remember any such order.
Q. Now, to Document Exhibit No. 19. These are teletypes about an attack on the car of General Lomschar. This has a hand-written note on it as to why no counter-measures --- no hostages were taken in Valjevo. This is at the end. Was this addition written by you?
A. This is not an addition; this is a question which I wrote down myself by hand to the referent, the Ic -
Q. In your staff?
A. Yes, in my staff.
Q. And what was the aim of this note?
A. When such reports came in I had to clarify them for my commander-in-chief, and for further report to the OKW everything that could be clarified at all by way of reports; in order not to have them writing back asking what they were all about, I asked the I-C here as to these two things.
Q. And then what took place in consequence of your note?
A. I don't know whether the I-C actually inquired about that again.
Q. But do you know about counter-measures because of this attack?
A. Probably; I cannot say that for sure, but probably countermeasures must have been reported, even if the I-C did not inquire again. In fact, these counter-measures did occur , as I have seen from the documents of the Prosecution, on the 20th of July.
Q. Now, please, in connection with this, look at Exhibit 23, on page 57 of the German and 78 of the English document book: Activity reports of the 704th Infantry Division, on the second page the entry of the 20th of July. There it states shooting to death of 52 Communists, 17 of them in Valjevo, in reprisal for the attack on the car of Brig. Gen. Lomschar, Commanding Officer of the 724th Infantry Regiment on the 18th of July 1941, pursuant to the order of the 816th Administrative Sub-Area Headquarters, Uzice.
Now, the teletype , Exhibit No. 19, was initialed by you on the 19th?
A. Yes.
Q. Counter-measures were taken on the 20th, and you asked about the counter-measures. Is there any connection there? Is that possible?
A. Such a connection I consider to be impossible for the following reasons: First of all, this hand-written note was not an order, neither from the Commander-in-chief nor from me, who was not authorized to give any such order. Secondly, from the times given in this tele-type, that is also chronologically,a putting into effect of the reprisal measures would have been impossible through these notes. This teletype took 13 hours from Serbia to my I-C (G-2).
Q. Witness, I will now show you the original of the photostat submitted by the Prosecution. (Document handed to witness.) Please check your description of the time taken with the help of this original.
A. As I have said, it was sent off on the 18th at nineteenthirty; at eight -forty five, on the 19th , it arrived at the Department I-C. Such reports were usually submitted in the course of the day, and on the 19th it was actually submitted to me, as I can see from my initial. Or it is possible that it was submitted only in the evening, when the usual daily reports were submitted. The communications from Athens to Belgrade were very bad. Now, if one considers that from Belgrade to the Sub-Area Headquarters Uzice, and from Uzice to the Serbian Gendarmerie -- it would have been necessary to telephone again, it would, according to my knowledge -- with communications as they were then -- already for this reason , have been completely impossible that this request to the 1-C should have resulted in the reprisal measures.
Q. And was this shooting reported to the Wehrmacht Commander South-East?
A. I consider it probable. However, I cannot prove that from the documents.
Q. What about the reprisal measures reported on the 20th of July -these shootings? What is your opinion? Or what was your opinion at that time?
A. That is the basic question: whether retaliation measures are justified -- if I understand you correctly.
Q. I also mean that, too, but primarily I mean now a question of whether that was introduced by the Wehrmacht Commander SouthEast or whether the shootings rested on an order which was already valid before the Wehrmacht Commander South-East had executive power.
A. The Armed Forces Commander South-East did not introduce any such measures. In Serbia there must have already existed orders by the OKW or by the OKH in that sense because, after all, we took over Serbia on the 23rd of July with -- if I may say so -- such conditions prevailing.
Q. Well, then, what was the attitude of the Office of the Wehrmacht Commander South-East, and your own opinion with regard to such measures?
A. One has to start from the following premises: As I said before, these sabotage acts, band fights, and other illegal acts of the population are contrary to international law. They were not only directed against the German Armed Forces, against which they were meant to be directed, but also against the indigenous population -- that is, against at least part of the indigenous population, and against the interests of the indigenous population.
On the other hand, these illegal acts could not be carried out without the aid of the indigenous population - and actually did find the aid of the indigenous population. Under these prerequisites that have been described by other witnesses here explicitly, it was only in the fewest cases possible to catch the real perpetrators of these crimes; reprisal measures, in view of the co-responsibility of the population, were indispensable, and could not be avoided.