Q Now, what is your attitude towards the question of how far one could go with these measures and in particular what was your opinion of the attitude of the OKW in this connection? Were any steps taken against the opinion of the OKW?
A The Armed forces Commander Southeast and the later Commander in Chief Southeast time and again opposed such collective measures in principle. As I said previously before the office took the attitude that the best and surest means was always sufficient strength of troops, and we put forward this attitude to the OKW?, and we pointedout our attitude and our opinion on the principal attitude of the OKW time and again; but the unavoidability in many cases, as fan as I am concerned at least in the course of further developments I could not possibly deny.
Q Therefore, did you want to take steps against the OKW and its attitude because the OKW was obstinate and demanded that these collective measures should be carried out and because you in contrast to that thought that the measures should be applied in a reasonable way?
A For such reprisal measures I always considered the following prerequisites to be correct. One, the perpetrators cannot be taken. Two, the reprisal measure must be carried out by a responsible office whose rights are clearly defined; and three, as far as possible they are to affect only such people that stood in an inner--connection with the incidents, that is as far as possible.
Q Now, was anything done against the views of the OKW that the reprisal measure should be carried out without going into these special conditions and that they should be carried out obstinately and as collective measures?
A Yes.
Q In which way?
A I myself, of course, do not know all the steps and all the objections clearly. I can't remember them cleanly, but I know for sure that General Field Marshal List, for example, in Summer 1941 protested in a particularly aggressively put teletype which was addressed personally to Keitel himself against the methods which were asked for by the OKW.
I myself drafted this teletype at the order of the Field Marshal, and I know that I put it in the hands of my personal orderly officer so that he should see to it that it was dispatched; and that after that, as I will point out later, I personally verbally reported to Keitel at the order of the Field Marshal. Then I know, and my recollection has been refreshed by letters which date from that period, that General Kuntze himself protested to the OKW as far as these points were concerned and found absolutely no understanding at all. I know that General Loehr tried to do something about it, that is, against theas you say - stubborn attitude of the OKW, and I myself have utilized many an opportunity when I was at the OKW to do the same.
Q Now, please look at Exhibits 20, 21, and 22, starting on page 50 of the German Document Book, and page 70 of the English Document Book. These are so--called reports of events, reports of the chief of the Security Police and of the SD. You have already stated that you didn't see these documents at that time, but nevertheless, you give me cause to ask the following question. By whom and to what extent had the SD been attached to the Military Administration in the Southeast?
AAttached, incorporated, as far as I remember it, not at all. By whom the SD offices had been sent to Serbia, I don't know. When we took over Serbia the staff of the Military Commander Serbia had already been formed.
Q But later on after the Wehrmacht Commander Southeast took over the executive power, was there collaboration with the SD?
A I should like to make a difference there between the following points. There was no SO office for the entire Southeast. I personally and my staff collaborated with the SD offices as far as the exchange of communications was concerned.
Q And could you say how the SD worked?
A May I still add something about the Commander Serbia. As far as I remember to the Commander Greece and Saloniki--Agean no SD office was attached at all, at least not in the beginning. As far as Serbia was concerned, I already said what the situation was like; in how far collaboration of the staffs of the Commanders with the SD went. Well, I, of course, can't say that in detail.
Q Could you see how the SD worked?
A No.
Q But you heard, about it at that time. What did you imagine the SD was?
A Well, the SD was, as far as we knew and as fan as we felt, a state and police office which after all we could not just get rid of like that. If I understand your question correctly, you are thinking about what one now-a-days considers to be extricably with the SD.
Q Yes, that is what I am talking about.
A Such a thing did not exist at the time. A thought about an illegal and even criminal action of the SD never occurred to me while I was in the Southeast area.
Q Do you know whether the Einstzgroups of the SD in Belgrade reported directly under the Chief of the Security Police of the SD and finally to Himmler without another intermediate office being in the Southeast?
A I considered it absolutely certain because after all the SD was not subordinate to any military office so that there was no necessity to report through Wehrmacht channels.
Q And now Exhibit 25 on page 62 of the German and page 86 of the English Document Book. This also belongs to those documents which you only got to know here, but nevertheless I would ask you to look at the document and to say for which sphere this supplement to the OKW Directive 31 was valid. In figure one, the expression "Southeast Front" is contained, what was meant by it.
A This order was applicable for the eastern theater of war. Here it says "Southeastern Front", then it goes on, "the enemy still being in the Dnjeper area."
Q Therefore this order didn't even arrive in the Southeast, that is, in the Balkans?
AAs far as I think, not, for it was after all only meant for the East.
Q Witness, how please turn to pare 1 of the German book, page 91 of the English Document Book. This is Exhibit no. 27. It is a teletype from the Wehrmacht Commander Southeast of the 29th of July, and it is directed to the Commander Serbia, "OKW deems it requisite that death sentences for sabotage be carried out by hanging and that in addition all other means of intimidation which are customary with the residents of the country should be employed." Why has this expression been used which is rather unusual in military language "The OKW deems it requisite"?
That was done quite intentionally in order to show to the Commandeer Serbia that the Armed Forces Commander Southeast wanted to keep as far as possible away from the methods which are mentioned here. This order arrived at a time when Field Marshal List was on leave. With the approval of the Deputizing Commander Southeast, General Felmy, it was passed on with this expression to indicate our dis-agreeing attitude.
Q This formulation in the passing on of OKW orders, was this form frequently chosen?
A. I can't say that in detail. In cases in which a passing on could not be avoided and in which one wanted to show that this was not our ideas, I have used such forms of expression.
THE PRESIDENT: Dr. Rauschenbach, the Tribunal desires to have a conference with representatives of the Prosecution and the Defense in connection with matters which were presented earlier this afternoon, and for that reason we will adjourn at this time. The Tribunal will stand adjourned until Monday morning, October 13th, at ninethirty a.m.
THE MARSHAL: The Court is in recess until nine-thirty Monday morning.
(The Tribunal adjourned until 13 October 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Wilhelm List et al, defendants, sitting at Nurnberg, Germany, on 13 October 1947, 0930-1630, Justice Carter presiding,
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal V.
Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if all the defendants are present in the Courtroom?
THE MARSHAL: May it please your Honors, all the defendants are present in the Courtroom except von Weichs who is still in the hospital.
THE PRESIDENT: Judge Carter will preside at this day's session.
PRESIDING JUDGE CARTER: You may proceed.
DEFENDANT HERMANN FOERTSCH DIRECT EXAMINATION (Continued) BY DR. RAUSCHENBACH:
Q Witness, we were discussing prosecution documents, Document Book I, Exhibit 28. In this Exhibit 28, German Document Book No. 72, and English Document Book I, page 92, have you ever heard about the report contained in document book about the shooting of communist functionaries?
A I can't say with certainty but I think I have seen the report.
Q Witness, now I hand you the original, a photostat copy. What can you assume from this photostat in excess of what is contained in the document book? The measures mentioned in this report on the basis of orders of the Wehrmacht Commando South East -- were they carried out?
A No. I assume from the original that Communists were described as especially responsible for the unrest, that the situations are judged to be thus: that the unrest as it is called here was caused mostly by the Communists, and because of the directions they received from Moscow.
To date there is no reason to worry about large actions as long as the Serbian people and the Cetniks do not collaborate with the Communists. And one can assume from this that up until this period, the beginning of August, on the whole, mostly police actions were carried out, and that the Commander in Serbia intended in the future, as he writes, principally to undertake police actions and in exceptions to advance against the collecting points of the bands with large numbers of troops.
Q Did you know Exhibit 29 on page 73 of the German and on page 94. of the English Document Book before this trial?
A The document as such, no, but probably the report contained in it addressed to the Commander Southeast.
Q I will come back to these individual reports later. Exhibit 30, German 77, English page 99, contains a report of the Wehrmacht Liaison Office in Belgrade. What was the task of this Wehrmacht Liaison Office?
A I am not quite certain, either it was an office which was concerned with the care for the troops and propaganda or else it was an intelligence office.
Q Was this office subordinate to the Wehrmacht Commander Southeast?
AAs far as I can remember, it was allocated to the Wehrmacht Commander Southeast and was subordinate directly to the corresponding department of the OKW, but I can't say that with certainty.
Q Have you seen this report of the 31st of July, 1941?
A I knew it because I have initialed it.
Q Did this report have any effect on the orders of the Wehrmacht Commander Southeast?
A I don't know of any such effect.
Q And now to Exhibit 31--it is on the German page 86, English page 111. This document bears your initials at the top as of 11th of August. It is a teletype.
A This is the answer of the German General in Zagreb to an inquiry from the Wehrmacht Commander Southeast about the shooting of insurgents in Croatia.
Q And who carried out these shootings?
I don't know with Certainty, probably Croatian officers because at that time in Croatia we only had weak security troops near the railroad lines and a few in the Bosnian-Serbian frontier territory.
Q What influence could the Wehrmacht Commander Southeast take on the happenings at that time in Croatia?
A Such a taking of influence was not given. The German General in Zagreb was not subordinate to us at all.
Q Then take Exhibit 36 on page 124 of the English Document Book. This is also a teletype. What can you tell us about this?
A This is a teletype of the High Command of the 18th Corps which was at that time stationed in Greece and it deals with incidents in Northern Greece and Crete. They show that at that time, the beginning of August, individual sabotage acts did occur also in Greece.
Q And Exhibit 37, German Book 101 and English 128--contains a report to the Wehrmacht Commander Southeast through the Commander Serbia and amongst other things it contains the note that in Zagreb persons who committed attempts and 98 Communists and Jewish hostages were shot. Did you or your Commander in Chief have any kind of influence on these events?
A No, for this applies to what I have said just before.
Q This concerns Croatia?
A Yes, this concerns Croatia.
Q I now come to Document Book II. I will read to you, first of all, the numbers of those exhibits which you got to know only during this trial and please confirm to me whether the numbers are right: Exhibits 40, 44, 46, 47, 51, 54, 55, 57, 58, 60, 63, 64, 65, 66, 67, 72, 73, 74, 75 and 77. You only got to know these documents for the first time during the proceedings here.
A Yes, that is correct.
Q And how does it happen that exactly in this document book there are comparatively large numbers of them which you didn't know before?
A Because this document book covers many events which happened during my absence.
Q This document book contains excerpts from daily reports of the Wehrmacht Commander Southeast during the period from the 23rd of July to the 1st of September, 1941. Please state how these daily reports of the Wehrmacht Commander Southeast originated and on which basis these reports were made.
A: The daily reports of the subordinate commanders came in, in general, during the late afternoon or the evening and then they were worked on by the experts concerned and compiled into an individual report, which was then submitted to me. After this, these matters were either verbally reported to the Commander-in-Chief or else the reports were submitted to him and then they went to the OKW Wehrmachtfuehrungsstab (Armed Forces Operational Staff) and they had to arrive so that by the next day early in the morning they could be submitted there.
Q: Did you know about all these reports of the Wehrmacht Commander Southeast?
A: Of course, as far as I was present.
Q: In the document book of the prosecution, do the excerpts there give a sufficiently complete picture of the occurrences?
A: No, in my opinion these reports are only a selection and moreover this selection is definitely mutilated.
Q: I now draw your attention especially to several reports and perhaps you can tell me where there are special gaps. Turn please, first of all, to page 5 of the German document book. This is a report from the 7th of August.
A: In the report from the 7th of the 8th-
THE PRESIDENT: Pardon me, where is it in English?
DR. RAUSCHENBACH: I don't think there is very much difference between the pages. In the English, it also begins on page 1 of the document, the sequence will be approximately the same and it will be page 4 or page 5 in the English. This exhibit is Exhibit No. 39 and it also begins on page 1 of the English document book, and it contains numerous reports and an approximately page 5 of the English document book is a report that reads at the top "Morning report from the 8th of 8th daily report, Commander Southeast from the 7th of the 8th, 1942".BY DR. RAUSCHENBACH:
Q: Witness, do you need the original?
A: No; I have here a copy of the original.
Q: Then what can you tell us in addition to this? It is page 12 in the English document book.
A: In daily report of the 7th of the 8th, there is missing for instance, on the 7th of the 8th, a Wehrmacht automobile found shot up on the road near Werdice, two soldiers wounded and at Uzice, four telephone lines destroyed by sabotage."
Then in the next report of the 10th of the 8th, there is missing for example, "attacks on gendarmerie stations, goods train shot at near Milanovac, the brakeman dead and the stoker seriously wounded."
Then in the report of the 13th of the 8th, for instance, the following is missing: "13th of the 8th, Morning, 2 Wehrmacht trucks south of Topola attacked by 60 bandits. Two soldiers killed, one wounded. Trucks blown up at station Markovac. Cash box robbed at the station. Attack on mines near Misacia. In the sector Stalac-Nish, an engine blown up by explosives. Large fire in the district of Petrograd because of arson. 40 to 50 Zoch (German measurement) of wheat burnt.
Then in a report of the 14th of the 8th, the following is missing". Guards near Krupanj attacked. Cable troops attacked by bandits near Kraljevo. Two soldiers dead, two wounded. Railway bridge damaged, two rail stations and five community offices attacked."
On the 15th of the 8th, the following missing -- cable repair troops shot at, munition train attacked.
Five soldiers dead, seven wounded. An ammunition train derailed because of sabotage. Two gendarmerie stations attacked. Four bandit attacks on communities."
MR. FENSTERMACHER: Your Honor, I am not sure whether General Foertsch is testifying to this from his own memory now or whether he is reading sections from the report. I would think that the best evidence on this point is the reports themselves.
PRESIDING JUDGE CARTER: I think these exhibits have been read into the evidence once and the Tribunal has the exhibits here. It seems to me we don't need to read them all into the record again. Cannot the witness tell what he understands about them without the necessity of doing that again?
DR. RAUSCHENBACH: These passages are not contained in the records. Those are exactly the passages which were omitted by the prosecution in their document book, At least, I haven't got them in the German document book. They are being read from the original and are to show the incompleteness of the prosecution's document book and how they have omitted exactly those passages which would support the evidence of the defense and that is why they are being read now.
MR. FENSTERMACHER: I would think the way to do that, your Honor, would be to have the missing excerpts put in the defense document book on behalf of Foertsch rather than to have him read these passages himself now.
PRESIDING JUDGE CARTER: I think if you are going into matters that were not put into evidence by the prosecution, you have a right to proceed.
DR. RAUSCHENBACH: Witness, you have given a large number of examples fro the omissions in the prosecution document book and I will present the other omissions in a supplement to the document book.
JUDGE BURKE: I wonder if you understood the ruling of the Tribunal?
DR. RAUSCHENBACH: I think I understood correctly. I was allowed to continue reading the passages which the prosecution omitted but the ones which have been read seem to be sufficient to me and I will bring the rest as a document. But if the Tribunal wishes to hear them to the end, then we can continue.
PRESIDING JUDGE CARTER: Your understanding, is correct. You may proceed.
BY DR. RAUSCHENBACH:
Q: Witness, we will Just take perhaps two more examples because they have some connection with the next question. You were talking about the report of the 14th of the 8th.
PRESIDING JUDGE CARTER: The Tribunal seems to be divided on what you understand what the nature of the ruling was. The ruling was that if you were offering parts of exhibits that had not previously been put in evidence, you had a right to proceed and do so if you cared to. If you want to put them in another document book that is your option.
BY DR. RAUSCHENBACH:
Q: Witness, the report of the 16th of the 8th, Exhibit 39, what is missing from this report in the prosecution document book?
A: The part about the political situation in the Serbian sphere in which it says, amongst other things, the situation further tense, terror and sabotage acts, presumably carried out according to plan, also directed against the Wehrmacht.
Recently also terrorization of the population. The bulk of the population itself is suffering severely under terror acts and in general remains loyal."
Q: And then from the 17th of the 8th -
A: 17th --.
Q: Well perhaps we will go through to the 25th and that would be sufficient examples.
A: From the 16th of the 8th, in the daily report, "German guard shot at. No losses. Wehrmacht lorry shot at by machine guns. No losses. Three Wehrmacht vehicles shot at by machine guns near Topola. One paymaster dead. Small railway line destroyed, train derailed and shot at. One wounded. Sabotage at telephone line near Nish. Tunnel explosion in the railway line west of Potsega. Railway bridge blown up at Zagilga. And in another place, grain stores and dairy destroyed by fire.
On the 17th of the 8th "Railway Lakovac attacked. 5 soldiers dead. 3 wounded. Near Jagedina one man from the organization Todt found shot dead. Leave train shot at by machine guns. Explosive attack on a tunnel. Farm burnt down probably by arson. Band attacks on 5 community offices."
On the 18th of the 8th, "Bicycle patrol attacked by Communists. One soldier dead, 2 wounded. German car shot at near Topola. One wounded. 3 German lorries shot at by Communists near Skela. One German dead. 2 Serbian gendarmes wounded. Attacks of heavily armed band on lorries belonging to organization Todt. 2 dead, one wounded. Railway bridge blown up. Band attacks on 4 railway stations."
And then for example on the 22nd of the 8th, shooting on German Battalion East of Topola. Attack on factories, 3 soldiers dead, one wounded. A pursuit detachment shot at from ambush. At a mine, the miners did not come to work because of danger from bandits.
on 23 and 24 of the 8th, again "shooting up of German vehicles; blowing up of a road bridge. Blowing up of a railroad line. Attack on 3 railway stations. Telephone lines destroyed."
Q I think that those are sufficient examples. In this compilation of reports in Exhibit 39 a number of reprisal measures are mentioned, and I now ask you were these reprisal measures carried out according to an order of the Wehrmacht Commander Southeast?
A No. I think I said already previously that these reprisal measures were in principle ordered by Hitler. And that the OKW again and again exercised pressure with regard to the carrying out of these measures. The individual reprisal measures could only be ordered by those officers who could check the individual case and had the corresponding insight into it. Because of the large area this couldn't be done by the Wehrmacht Commander Southeast.
Q Well, now, something else, witness, did you ever think during that period about the effect which it would have if because of the insurrection movement the army did not held the positions in the Southeast?
A Those were cur daily worries. We realized completely that on the whole even at the end of the actual fighting the importance of the Southeastern theatre of war had remained the same as before. As I said recently, as the large Southern flank for the Russian theatre of war, as a road to Africa, and as an airbase for the air operations in the Eastern Mediterranean.
Q And then what did you think was necessary in order not to have the situation in the Balkans endangered by the insurgents; you have already briefly referred to this before on Friday?
A The Wehrmacht commander Southeast was principally of the opinion that the combatting of the insurgents should if possible be carried out at once by military means.
Q Did you think it also possible that by increasing the troops reprisal measures would be quite superfluous?
A No, it wasn't as simple as that. The reprisal measures remained dependent entirely on the attitude of the population. By increasing the troops we wanted to insure that the insurgents would be crushed from the very beginning, and we also wanted to achieve by this that the mopped up and pacified districts could be occupied as far as possible. We could then hope that the population would not be so easy to win for illegal actions, and now seeing their peaceful attitude the occupation troops would no longer be forced to take reprisal measures.
Q And did one take reprisal measures because one had too few troops?
A No. I just said that the reprisal measures dependent alone on the attitude of the population, but even if there had been more troops individual sabotage acts or other senseless actions of an instigated population could possibly have occurred which asked for reprisal measures.
Q And then do I assume correctly from this that you are of the opinion that retaliation measures under certain circumstances are unavoidable with no regards as to the equipment and strength of the own troops?
A Yes, that is correct. That was my opinion. And it is subsstantiated by two facts, which do not concern the Southeast area, however -first of all by the fact that in May 1945 in Berlin retaliation measures were threatened in case of attacks on Russian soldiers, and where it is stated that apart from the perpetrators as a rule 50 Nazies will have to pay with their lives for the attack on one Russian soldier. And another case I know that in the agreement between the Commander in Chief of the Allied Forces, General Eisenhower and Marshal Bedoglio at the end of September 1943, there was one provision which stated that the allies resolved themselves the right if the agreement was violated to carry out special measures among other things occupation of other territories, but also punishment, for instance punishment actions carried out by aircraft and other measures. And I think that both occupation troops, the Russians in Berlin in 1943, and as well as the Allies in 1943 in Italy were not weak as regards their numerical strength.
Q Do you know whether the measures so threatened by the Americans and by the Russians were carried out?
A I hope that it hadn't been necessary, and I think that the population of these two civilized nations had enough understanding to realize their duty towards the occupation powers and not to cause the respective Commander in Chief so much trouble as the population in the Southeast caused us.
Q Now, I come back again to the measures which you took to combat the insurgents which you thought were correct. We talked already about the military fighting and the strengthening of the occupation to combat the insurgents; in the political and economical sphere did you see any possibilities there to quell the insurgents?
A Yes. The Armed Forces Commander and later on the Commander in Chief Southeast frequently in memoranda and reports tried to transform the preconditions which partly were responsible for the development of the restlessness among the population.
He made proposals for the adjustment of frontiers. He frequently attempted to mitigate the inner political conditions in Croatia, and to give the newly created Serbia clarity with regard to its political future. Later on we proposed that Montenegro should be incorporated into Serbia. And then here the very intensive fighting against individual diplomats, especially against Envoy Kasche in Zagreb should be mentioned. Economically, I would like to state the following: The attempts of the Supreme Military Quarters in the Southeast to leave as many of the products in the land , to exercise a little pressure in the restoration and modernization of the factories and mines, and to give as many workers as possible wages and food. Then these are the permanent efforts to improve the railroad situation. Propaganda measures also interested us very much, and this, of course, was principally in the Southeast,to get rid of the centralized ideas which they had in Berlin, where it was thought that the whole of Europe could be worked from one single propaganda drum beat. We were of the opinion that here the possibilities of the area had to be taken into account and of course these are the examples for such action.
Q And were all these possibilities within your sphere of power?
A No, unfortunately not. They were essentially political decisions, which we could not make ourselves. We could only request them.
Q And now within your small possibilities did you try to make things easier in the country economically?
AAs far as we could do it ourselves, of course we did it.
Q We now come back to the retaliation measures; Witness, in the period about which we are speaking, that is the autumn of 1941, were definite quotas already ordered for retaliation measures and by whom?
A No, before the 16th of September no ratios were ordered.
Q And what did yourself thing about the fixing of definite ratios?
A My personal opinion was the following: it might be expedient for definite districts and for limited periods that such ratios should be fixed principally as a warning for the population, but as I have already stated, it is necessary that every individual retaliation measure should be checked according to the circumstances and a decision taken corresponding to the case.
Q And did your Commanders in Chief order definite ratios?
A No. As long as I was Chief of Staff in the Southeast, my Commanders in Chief never ordered definite ratios.
Q Witness, in military language at that time, what was understood by the term "Communists?"
A Communist Partisans.
Q And how was this interpretation arrived at?
AAt that time we knew about a directive of the Communist Party in Serbia for combatting the bands, this directive contained measures and provisions for the members of Communists Party in Serbia for such band fighting.
Q Witness, it is reported in many reports that Jews were shot as hostage; what consideration were taken into account here for the fact that Jews were especially considered for hostages?
A I remember that from the reports, principally in Serbia, it was frequently seen that Jewish circles were behind the insurgent movement through intellectual support financial support and ether kinds of help.
Q In the Southeast was there a Jewish extermination program?
A I never heard about such a program.
Q And what was your own attitude towards the Jewish problem?
A I myself was never an anti-semite, and thought that the persecution of the Jews was, I would like to say, indecent and also stupid from a political point of view. I would like perhaps to add that in Greece there was no question at all of any kind of retaliation measures against the Jews. A sign that whatever was undertaken there was only undertaken if there was a reason for it.
Q The morning report of 16 August 1941, page 8 of the German Document Book, Exhibit 39, contains a judgment of the political situation within the sphere of the Wehrmacht Commander Southeast. who made out this judgments?
A It certainly is a compilation of the various reports from the various districts.
Q Did this judgment express your own opinion?
A My personal opinion?
Q Yes. On page 9 it states, bulk of the population itself suffered severely under the terror acts and remains on the whole loyal, "and then at the top there is mention of the band activity, which states "Recently also terrorization of the population." And later on, "Fertile grounds here also for mass expulsion of Serbs from Croatia, amongst other things,"
A I think that the description of the situation as it is set down here, certainly conforms with the situation at that time, but with regard to your question about my own opinions being set down, I can state that my own opinion only had any effect at all until that moment when it was submitted to the Commander in Chief, when he decided about it or approved it.