Q And then when you came back from leave you talked to him again?
A Yes.
Q Had his opinion changed?
A I have to state frankly that I could not make head and tail of Dankelmann's opinions. I could only establish that he was very dissatisfied with the organizational set up which had been reached through Boehme's assignment and I touched upon the question whether it would not be better if he asked for another assignment if he did not consider that solution fortunate.
Q How long did you remain in Belgrade?
A One day.
Q And when did you return to your staff?
A I flew from Belgrade to Athens on the 27th and in the course of the 27th of September I reached my staff. I believe it was in the afternoon.
Q. And what was the opinion you transmitted to your Commander in-Chief?
A. As I recollect, I transmitted to him the impression that one could agree to the employment of forces as Boehme had suggested it, but I believe I also told him that for reasons of organization I did not consider Dankelmann's remaining in his post a very good solution because there might well be tensions.
Q. What did you report to your Commander-in-Chief regarding your representations with Keitel?
A. I am sure I reported to him in detail regarding our whole discussion and that I had the total impression at that time and I believe that I also voiced it, that in view of Keitel's attitude I did not now consider a direct opposition possible any longer. That I instead had gained the impression that through such opposition Hitler would only be moved to an even stronger resistance against our opposition.
Q. Will you please have a look at Exhibit 41? It is contained in Document Book II on page 19 of the German text and page 21 of the English text, Exhibit 41. Did you at that time gain knowledge of that teletype?
A. It was sent out during the time of my furlough and I do not believe I read it at a later date.
Q. Now, Exhibit 42 -- it is in the German document book on page 21 in the German and on page 23 of the English document book. It is an order by the Wehrmacht Commander Southeast dated the 5th of September 1941 and its subject is the suppression of the Serbian insurrection movement.
A. I did not know that directive when it was drafted. That, too, fell into the time of my furlough but I would assume it is certain that I read it after my return.
Q. In this document under the signature we find an initial, "K".
What could that mean?
A. That is the initial of my deputy, Colonel Kuebler.
Q. Now, let's have a look at Exhibit 43. Its on page 23 of the German text and page 27 of the English text.
A. That is the same document as Exhibit 42.
Q. It is the same order, is it?
A. Yes, the same order.
Q. Well, now to Exhibit 45. It is on the German page 30 and on page 34 in the English document book. It is a teletype to the Wehrmacht Commander Southeast.
A. I assume that I know that report to the extent to which it did not fall into the time of my furlough.
Q. And then Exhibits 38, 49, and 50 which refer to General Boehme's assignment in Serbia as Plenipotentiary Commanding General.
A. I have already stated that during all those events I was not present. I learned about Boehme's assignment at the OKW through a teletype which was sent to me there by my office and this teletype stated that this assignment had been effected.
Q. Before you had started on your leave, had it been considered that the Armed Forces commander southeast was to apply for Boehme's assignment?
A. No, there had never been any talk about that previously.
Q. Did you know General Boehme previously?
A. I knew Boehme from -- that is, I saw him for the first time after the Greek campaign and in the course of the subsequent months I met him about three or four times. Before that I did not know him.
Q. Exhibit 53 which is on page 52 in the German and 67 of the English document book is the important Keitel order of the 16th of September 1941. It is the order where the ratio of 50 up to 100 to 1 as reprisal measures is contained. When did you gain knowledge of this order for the first time?
A. I can of course, not name the exact date but it was after return from my leave.
Q. When this order came to the Armed Forces Commander Southeast from the OKW and when it was further worked on you were on leave, weren't you?
A. Yes, when the order came in and when it was worked on I was not present at my office.
Q. What was the meaning and significance of this order during the subsequent time?
A. In this order I see the essential basis for all reprisal measures of the subsequent time -- above all, in Serbia, and this order showed, furthermore, all persons who received it very clearly what Hitler's tendency was. It told all persons concerned that even for the most stringent measures of that kind, they could count on the approval of the highest authorities.
Q. Please note particularly figure "2"; Arabic 2. It reads: "The measures taken up to now to counteract this general Communistic insurgent movement have proved themselves to be inadequate. The Fuehrer has now ordered that severest measures are to be employed in order to break down this movement in the shortest time possible. Only in this manner, which has always been applied successfully in the history of the extension of power of great peoples, can quiet be restored." Did that show clearly the opinion of the OKW?
A. I thought of that passage when I mentioned just now that every person who took even the most stringent measures' could count on Hitler's approval and that was Hitler's opinion.
Q. And under paragraph 3-B; the order reads: "In order to stop these insurrections at their inception; the severest measures arc to be applied immediately at the first appearance in order to demonstrate the authority of the occupying power and in order to prevent further progress. One must keep in mind that a human life frequently counts for naught in the affected country."
That, too, complies with the opinion of the OKW, doesn't it, in the way that it was shown in your discussion with Keitel?
A. It does comply in the meaning. Whether these words were actually mentioned, I do not know but the meaning is quite clear.
Q. Was this order issued on the motion of authorities in the Southeast?
A. By no means. I believe that I have already stated that the opinion of the Armed Forces Commander Southeast was contrasting. I want to repeat again we wanted to cope with the situation by reinforcement of troops.
Q. Exhibit 56 contained on page 56 of the German and 71 of the English document book is an order by the Commander Serbia headquarters Staff. The subject is: "Insurgent movement." Did that order become known to you at the time?
A. No, this order, too, falls in the days of my furlough and, furthermore, I do not believe that it reached the Armed Forces Commander Southeast but I do know the contents as such and, above all, I know the directive of the Communist Party for Serbia for band warfare which I mentioned before.
Q. Witness, I will show you a photostatic copy. This is not one of the documents which were submitted by the prosecution but it is a photostat of a document which was amongst the documents that came from Washington. I want to ask you whether this is the directive that you mentioned?
MR. FENSTERMACHER: Your Honors, may I ask that the 24-hour rule be observed with respect to documents which arrived from Washington?
PRESIDING JUDGE CARTER: I think probably under the rules that it should.
DR. RAUSCHENBACH: Your Honors, I am not offering this document as an exhibit but I am just showing this document to the witness and at this point it is not yet an exhibit.
Later on I shall present it in my document book and in all the trials in which I have participated as defense counsel or of which I have read, the prosecutors have during their examination of witnesses, and above all in cross examination, been allowed to submit documents to their witnesses which until that time had not been presented, without showing these documents to the defense beforehand, and objections of the defense regarding these incidents have always been rejected. I am just submitting this to the witness. At present it is not introduced in evidence. All I want to do is for the witness to say whether this is the directive to the Communist Party concerning band warfare and whether, looking at that document, he can remember especially significant passages.
THE PRESIDENT: I think probably you're entitled to identify the document, but after it is offered into evidence or road from, I think the twenty-four-hour rule would apply.
DR. RAUSCHENBACH: That is correct.
BY DR. RAUSCHENBACH:
Q. Now then, Witness, will you please restrict yourself to merely telling me whether this is the document that I mentioned and what you can recall by looking at it, but please do not read it aloud.
A. I take it from the title and individual sentences that it is the document mentioned. I believe to be able to take it that these arc the directives of the Communist Party of Serbia for the band warfare which I know at the time. I merely recollect that the document which had been submitted to me at that time was more extensive, but I do find two points here which remind me essentially that it is this document.
Q. Can you take from it that the Communist Party approved of an especially cruel band warfare?
A. I did still recollect that these directivesof the Communist Party for band warfare in their whole tendency relied oh Moscow, and I find here, for instance, one hint, "vengeance for fallen fighters," and I read directives concerning the participation of the population, and I think that is what was meant.
Q. During the further course of events were further such directives issued from the bands?
A. I do not recollect any written directives of that nature, but I do remember rather well that radio Moscow currently mentioned individual partisan operations by giving the names and the localities, which may have been fictional, with an exact description of how these individual sabotage acts -- suprise attacks etc. -- were carried out, and every child could assume from this that this was not the description of an operation which had already taken place, but instead it was clearly a directive of how such a plan was to be carried out.
That is, it was an instructional radio transmission for partisan candidates, if I may put it that way.
Q. Would you like to look at Exhibit 59? It's on page 63 of the German and Page 79 of the English. Those are reports by the Commander of Serbia. Did you gain any knowledge of those?
A. I knew those reports, as can be seen from my initials on some of these reports, but essentially they arc repetitions of reports such as are contained at the beginning of this document book and contained repeatedly in other documents. They are not individual reports.
Q. Are the reports contained there those which came in during September?
A. Yes, the report here as of the 4th of September on Page 76 of the German document book--that one I do not know because it came during the days of my leave.
Q. Now, to Exhibit 61. It's on Page 82 of the German and Page 103 of the English. This is an order by the Plenipotentiary Commanding General in Serbia concerning the evacuation of Sabac. Was this order known to you?
A. Whether I read the text of this order upon my return I cannot say any more today, but the fact of the evacuation of Sabac was known to me, as I have explained before when talking about the discussions in Belgrade.
Q. Then, let's go to Exhibit 69. It's on Page 104 of the German and Page 13 of the English document book. This is an order by OKW, dated the 28th of September 1941, and it refers to the taking of hostages. Who passed this OKW order on to the subordinate offices?
A. After verbal report to the Commander-in-Chief, this order was passed on with my signature.
Q. That is your signature then on Page 2 of the document?
A. Yes, indeed.
Q. Does it comply with military procedure that such orders before they were passed on were signed by tho Chief?
A. If the Commander-in-Chief had no additions to make or no directives for the execution the passing on was merely a matter of routine and could, therefore, be signed by the Chief.
Q. In this order Keitel, on behalf of the OKW, orders that the military Commanders have to have always at their disposal a number of hostages of different political shades, and he says according to the attitude of the perpetrators -- whether he is a Nationalist, a Democratic middle class, or a Communist. In case of attack hostages of the group corresponding to that to which the culprit belonged are to be shot. What was your attitude to this order?
A. I had no nisgivings concerning the passing on of this order, quite apart from tho fact that I could not have prevented a passing on of the order had I wanted to.
Q. If that order had not been issued by the OKW but insteand of that by the Armed Forces Commander Southeast himself, would you have signed then too?
A. No, in that case it would have been a directive or an order of the Armed Forces Commander Southeast. Then, I would not have been allowed to sign that, but only the Commander-in-Chief would have been in a position to sign it because of its fundamental nature. However, this was not an order of the Wehrmacht Commander. It was an order by the OKW.
Q. Now, to Exhibit 70. It's on Page 108 of the German and Page 114 of the English text. This order deals with the treatment of the male population in the territories that had been mopped up. What caused this order?
A. The necessity for such a regulation was obvious, but maybe my discussion with Boehme concerning this question might have played a certain part when this order was drafted, because it was issued shortly after my return on the 4th of October.
It appears to be necessary to establish peace and order in these mopped-up, territories.
Q. In Exhibit 71 on Page 110 of the German and Page 133 of the English text there is some talk about a concentration camp by the name of Sasavica. Did you know of the establishment of that camp at that time?
A. No, this camp and also the name were not know to me.
Q. Exhibit 72 on Page 112 of the German and Page 146 of the English text is a communication from the Chief of the Security Police and the SD. A number of band attacks are reported here. Was that an exceptionally large number? Did you know the document?
A. Yes, I have it here. After all there were in one week 46 dead, 35 wounded, and 63 missing, on our part and amongst them there were 19 civilians who were killed, and 12 civilians who had been kidnapped. There wore 35 attacks in one week on railway installations and 46 attacks on communities in one week. There wore 21 attacks on bridges and ships. That is a very high number of attacks, but unfortunately normal considering the situation at that time.
Q. Witness, let us just briefly return to the order for the taking of hostages. That is Exhibit 69. It's on Page 104 of the German text and Page 138 of the English document book. You said you had no misgivings in passing on that order. To make it quite clear, did you have misgivings against taking hostages at all?
A. No.
Q. Were you of the opinion that one was permitted to take hostages and that it was customary in the usages of war to take hostages?
A. Yes, that had been established and laid down.
Q. And what was your attitude to the fact that the OKW recommended the taking of hostages from certain groups, that is, from Nationalist, Democratic Diddle class, and Communist groups?
A. I considered that perfectly justifiable because it is in the nature of taking reprisal hostages that they are taken from all groups which are in some way connected with the illegal actions which one wants to prevent and from which one wants to deter.
Q. You explained to me on Friday already that you personally were of the opinion that when ordering and taking reprisal measures there has to be a certain inner connection between those who are responsible for the attack and those who are then possibily executed in retaliation.
A. I said if possible.
Q. Yes, if possible.
A. Because I would not always be in a position to know from what ideological direction the attack originates. That would load me half way to the recognition of who incited it.
Q. And in this order you have this inner connection? The sentence reads, "In case of attack hostages of the group corresponding to that to which the culprit belongs are to be shot."
A. Yes, that is correct.
Q. In a reasonable execution of this order that could basically comply with your own opinion?
A. Yes, that's correct.
Q. Otherwise,one could not explain your remark that you had no misgivings in passing on that order?
A. That thought is correct.
Q. We will now turn to Document Book III of the Prosecution. Here again I shall refer to the compilation concerning tho exhibits which you have seen for tho first time during this trial. According to this compilation these are Exhibits 81, 88, 87, 89, 91, 92, 93, 94, 95, 96, 99, 100, 101, 104, 104-B, 105, 106, 108, 109, 110, 112, 113, 114, 114-B, and 114-C. These documents with which the Prosecution charges you, you got to know only now.
A. Yes, that is correct.
Q. I will talk now about the retaliation for the murder of the 22 soldiers of tho 521st Army Signal Regiment. In Exhibit 78, on Page 1 of Document Book III, we have a written report by the Plenipotentiary Commanding General in Serbia, dated the 4th of October 1941, and this shows that the attack on the German soldiers took place on the 2nd of October 1941. That is, the murder of the German soldiers. I ask you was this attack on the German soldiers reported to the Armed Forces Commander Southeast before General Bochme issued this order, Exhibit 78, dated the 4th of October?
A: Yes, I took it from the Prosecution documents that the report on the surprise attack reached the Armed Forces Commander on the 3rd of October.
Q: Witness, do you mean Exhibit 127 in Document Book V?
A: Will you give me the number again?
Q: Exhibit 127?
A: Yes, no. 127. That is the one, the report of the 3rd of October 1941. It's on Page 99 of the German text.
Q: And what can we see from this order?
A: Army Signal Regiment 521st, 2 dead, two wounded.
Q: Were any details reported to the Armed Forces Commander Southeast, especially details concerning the manner in which the soldiers were killed?
A: That was done during the further course of events. I remember such reports.
Q: Did the Armed Forces Commander Southeast himself intervene because of the reprisal measures to be taken?
A: No, but I believe that at that time the OKW expressly ordered the application of the ratio 1 to 100.
Q: Did the Armed Forces Commander Southeast gain knowledge of the ordering of reprisal measures by the Plenipotentiary Commanding General in Serbia?
A: Yes, on the basis of Boehme's report of the 9th of October.
Q: Is this report, you're referring to, Exhibit 122, contained in Document Book IV, on Page 60 of the English text and Page 45 of the German text?
This is a radio message to the Armed Forces Commander Southeast.
A: Yes, its a radio message of the 9th of October.
Q: Or a teletype?
A: Yes, it may be a teletype, but it appears to be a radio message because all of these reports here are designated as radio messages, but that's immaterial.
Q: We will refer you to this document again when we deal with Document Book IV? Now, did one have no misgivings in the office of the Armed Forces Commander Southeast concerning the execution of such orders? Just in this particular case a large number of people had to give their lives.
A: We had had thoughts of that nature already at a prior time -- expensive thoughts -- and I think that I have already said quite a lot about the treatment of the basic question when I talked about my discussion with Keitel etc.
Q: The number is 21, as can be seen from Exhibit 78. That is Boehme's order. What did the men think about that order?
A: During that time I did not myself lead any units, but I do not believe that I am wrong if from discussions with troop commanders of all ranks and all ages I still today have the impression, that the men themselves demanded energetic measures of this insurgent pest.
Q: Could you give an explanation for that attitude of the troops?
A: Such an explanation is very simple in my opinion. A military unit that has occupational tasks and sees its military tasks in the preparation of a prevention of an invasion, and an occupation which wants to live in peace with the population and above all a military unit which consists of men of older ages, as was the case at that time in Serbia, and they were more prepared for a peaceful life of occupation than for any other kind of fight, such a military unit demands from its superiors an intervention against surprise attacks, ambushes, and illegal actions of all kinds for their own protection.
And this is done from a healthy attitude, such as soldiers of every nation would have it.
Q: Did you yourself, from a legal standpoint, have any misgivings against that order?
A: Boehme was entitled and authorized to issue that order on the basis of the basic directives of the 16th of September.
Q. Witness, in this connection I show you again the paragraph 47 of the German Military Penal Code, "if by the execution of an order with regard for official matters, a paragraph of the penal code is violated, the superior alone is responsible. However, the obeying subordinate will be punished as a participant, 1) if he exceeded the order; 2) if he knew that the order of the superior concerned an action which had as its purpose the committing of a civil or military crime." This provision of the German Military Code, did that not give you a means to refuse the carrying out of orders such as that Bochme Order?
A. I am not a jurist but I do know that paragraph 47 has as a prerequisited that the person concerned is consciously aware of the fact that the order against which he can or should object has as its purpose a crime. And, accordingly my practical military experience this paragraph concerns cases as for instance the following: A Lieutenant orders a corporal to go and hit his nin-commissioned officer. Then it is quite obvious that the corporal will say that the purpose of this order is to insult the non commissioned officer and I can, therefore, not do it. Or a Major tells a first Lieutenant, I order you to rape a certain woman during a certain night; then the purpose, is quite obvious. For instance theft, or plunder is ordered - but I believe in the whole German Reich there would not have been a single court to regard a Hitler order or a Keitel order, an order which proclaims the will of Hitler as incitement, as instigation to an illegal action, a crime,- that is quite beyond my imagination.
Q. Now, let's turn to Exhibits 81, 82 and 83. They are reports by the SD and they are on the pages 9 of the German and 11 of the English Document Book and subsequent pages.
JUDGE WENNERSTRUM: Pardon me. Will you repeat that again; I didn't get it.
Q. Exhibits 81, 82, and 83. They start on page 9 of the German text and on page 11 of the English Document Book. Did you get to know these reports during your assignment in the Southeast?
A. No.
Q. In the report Exhibit 81 there is some talk about the installation of a collection camp near Mitrovica. Do you know on whose orders this camp was instituted?
A. I don't know that. I would assume it was done on Boehme's order in connection with Sabac but certainly not on the basis of the order by the Armed Forces Commander Southeast.
Q. In Exhibit 82, the page is 11 of the German Document Book and 13 of the English Document Book. In this exhibit a larger number of attacks and sabotage acts are mentioned. Were these attacks reported to the Armed Forces Commander Southeast?
A. I assume that for certain even if in a different form, but after all in two weeks, two weeks following the previously mentioned week, there are mentioned 70 dead, 107 wounded, 9 kidnapped. Further 183 attacks on post and telegraph offices, 38 on installations, 38 on railroad stations, and I am sure that that was reported.
Q. In this document there is also some talk about the bands recruiting by force all men between the ages of 16 and 60 and that is under threat of death penalty. Did the Armed Forces Commander Southeast also gain knowledge of this?
A. Such reports came in frequently.
Q. Furthermore there is some talk about a prisoner camp in Sabac and it says that of the 22,000 prisoners up to date about 8,000 had been examined and 910 had been liquidated. Did the Armed Forces Commander Southeast gain knowledge of this too?
A. The checking of these camps was expressly ordered by Field Marshall List in his order on the 4th of October. However, without saying that this screening had to be done by the SD. The shootings are probably retaliation measures, which reached the Armed Forces Commander probably in some other form of report.
JUDGE WENNERSTRUM: Pardon me, just a moment. Before we got too far away from the matter that I am interested in, I wish you would again question the witness concerning the statements he made relative to the German Penal Code.
He spoke rather rapidly and the interpretation was rather rapid and I would like to have him explain more in detail his attitude and his comments that ho made at that time. If that could be done now I would appreciate it.
BY DR. RAUSCHENBACK:
Q. Yes, I shall repeat that question. Witness we sill come back to paragraph 47 of the German Military Penal Code.
JUDGE WENNERSTRUM: And go slow.
Q. And will you please talk slowly because before the Tribunal because of your rapidity did not get everything. I had read to you the text of paragraph 47 and I think that the text of paragraph 47 was understood correctly and I had then put a question to you. Did you, because of that paragraph 47 of the German Military Penal Code, have the possibility and saw the possibility that the Boehme order regarding the shooting of 2,100 because of the surprise attack would not have to be carried out.
A. I can, of course, not repeat the exact words which I used in my previous statement but as to the actual meaning I said the following: I am not a jurist but I do know that this paragraph 47 for the person that wants to use it contains two prerequisites which are decisive. First of all that the order which is supposed to be rejected has as its purpose a crime or the committing of a crime and secondly that the person who wants to make use of that paragraph has to be consciously aware of this purpose and intent of the order so that he can immediately realize and did recognize that this order which he is given requests him to commit a crime.
Q. Just a minute, could a German soldier gain that awareness if such an order came from the OKW and Hitler?
A. In this connection I said a bout the following: I could not think of any court in the whole German Reich of that time which would regard a Hitler order or a Keitel order, expressing Hitler's will, as instigation to a crime of a criminal act, because Hitler was the head of the State, Hitler was the Supreme Commander of the Armed Forces, and according to the then customary attitude Hitler's orders one might say wore almost law, so that no German court without facing execution itself would have risked to say "this Hitler order intends a crime, that is, that Hitler is a criminal and you who is merely a soldier, you who objects to this order, are right."
Such an imagination, such a picture always seen in the light of that time is quite impossible and I mentioned that according to my military and soldierly experiences paragraph 47 means something entirely different. It applies to cases which definitely imply an order to steal, to rape, to plunder, to insult, that is, orders where the common soldier can recognize immediately that he is asked to commit a crime and that he mustn't do that and then he knows that paragraph 47 protects him if he refuses to execute that order. That is in my opinion with regard to the meaning of that paragraph.
JUDGE CARTER: The Tribunal will recess until 1:30.
(A recess was taken until 1330 hours)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 13 October 1947)
THE MARSHAL: The Tribunal is again in session.
PRESIDING JUDGE CARTER: You may proceed.
BY DR. RAUSCHENBACH:
Q. Witness, before the recess we got to Exhibit No. 82, Document Book III, German page 11, English page 13. On the last page of this exhibit is a report of the Chief of the Security Police and SD and it says amongst other things: "After the liquidation which had already been ordered by the Commander of Serbia, of the rest of the male Jews, the ghetto would contain about 10,000 female Jews and children." This is the ghetto in Belgrade. I now ask you, was the establishment of this ghetto ordered by the Wehrmacht Commander Southeast?
A. No.
Q. Did the Wehrmacht Commander Southeast issue an order that the male inhabitants of this ghetto should be liquidated?
A. No, I don't know of any order issued or passed on by the Wehrmacht Commander Southeast which ordered that Jews were to be killed simply because they were Jews.
Q. Did you know anything about the attitude of the OKW in this connection?
A. No.
Q. Did you know anything about the shooting of the 200 Communists and or Jews in Belgrade as mentioned in the SD report of the 20th of October?
A. May I ask, is that also Exhibit 82?
Q. Yes, also Exhibit 82, on the third page of this exhibit, page 4 of the original: "200 Communists and or Jews shot to death."
A. I can't say . I haven't found any kinds of report a bout this in the documents which have been submitted to me.
Q. To whom then did this report of the SD go, this report, Exhibit 82?