The railway network of Belguim is well known to ever European. The railway system in the Pelopones consisted of a small-track railroad, nothing else. Railway conditions quite generally in the Southeast were represented in the following manner -- that you could draw on the German map a railway from Cologne to Magdeburg, then from Magdeburg to Breslau and from Magdeburg to Stettin. That was all the railways in Germany. Then, in addition to this, there was the fact that the Hessians or the Saxones or the Pommeranians or the Sitesians could interrupt the railway wherever they liked when they thought it was a good idea.
Q. Now, just a moment, witness, so that it can be understood. You mean as in comparison to the Balkans?
A. Yes, as compared to conditions in the Balkans. These are the figures which I still remember.
Q. Now, please look at Exhibit 219 which is on page 18 of the document book. It is on page 14 of the English document book. Did you know that document art the time? It is a letter by the Commanding General in Serbia.
A. No, I did not know that document.
Q. It is mentioned there on the second page that the Commanding General had ordered that from among the captured enemy those who were strangers in the village were to be regarded as partisans and treated as such. What order by the Commanding General are we concerned with here? Did you know it?
A. No, I didn't knew it. He probably issued it when he inspected Serbia, the date of which should be found in one of the activity reports in the prosecution document around this period of time.
Q. What was to be understood by the term "eliminated?"
A. It should mean "committed to a camp" as I have seen from statements in other documents.
Q. Now, let us look at the next exhibit, 220.
MR. FENSTERMACHER: Your Honor, in the translation here again Dr. Rauschenbach has talked about persons being eliminated and in the English book it says "to be done away with."
THE PRESIDENT: That can be referred to the interpreters for clarification if counsel desires to have it done.
DR. RAUSCHENBACH: If it please the Tribunal, the translation of the English document book is correct. That means "beseitigen" in German whereas the term "to eliminate" really means that the people concerned were killed. I think the English document book is correct, in my opinion, but the translation just now of the passage which I have read -- that, I think, was not quite correct. I think the translation in the document book is correct and I would like to repeat my question once again.
Q. What did you mean by "doing away with?"
A. I know that "to be done away with" was understood as meaning to commit people to a camp.
Q. Now about Exhibit 220, which is on page 17 of the English document book, this is a file note concerning the conference of the Chiefs on 17 August 1942 and then there are other file notes as well. What type of conferences were these?
A. These are the internal conferences within the staff with my colleagues.
Q. And what purpose were these two conferences to serve?
A. The purpose was to give information about what happened in the past week and also give than directives for the work to be done in the time to come. Work within the staff was to be coordinated.
Q. Were the measures described here ordered by you?
A. No, I said just now that is is a description of past events. The measures therein are simply being described by me as something which happened but not something I had ordered.
Q. In the first file note concerning the conference of 17 august on the second page you report to the members of your staff also about losses of the bands. I am struck by this fact. It is mentioned that the Germans had 24 dead, 32 wounded and 3 missing whereas the allie Croats show 80 dead, 137 wounded and 130 missing -- 136 missing; that is a mistake in the document book.
"In retaliation 677 people have been shot." Now, if you bear in mind the order by the OKW whereby for each German ambushed 100 were to be shot or for each German wounded 50, surely you would arrive at a far larger figure of reprisal measures taken, always provided, of course, that reprisals were taken for those killed in battle.
A. I would like to say about that that, first of all, for those who were killed in operations no reprisals were taken and, secondly, as I have emphasized before, not all operations taken by the other side were taken reprisals for. Moreover, the ratio of the Keitel order, was applied only for a very short time and even then not in all cases.
Q. The conference of 7 December, which is the second file note you mentioned, is about fighting in Serbia. Have your remarks been correctly quoted in this description?
A. No, I don't think so because I see here two logical mistakes. Here we have what is known as the disobedience action, which Mihjlovic had started in order to get the Cetniks loyal to the government, namely the Serbian State Guard and those employed by the occupation, such as the burgermeisters etc. to rebel. That had a temporary success up to a point, but on the whole it was a failure, and this is what I refer to here. In this connection unrealiable elements in the Cetniks or elements which had become unreliable were disarmed and here figures are being put together which are entirely incorrect. It says, for instance, roughly 10,000 fought on our side, half of which had withdrawn to the woods. That should be 5,000, but then it goes on to say a quarter, around 4,000 men were disarmed. Well, that's nonsense. And then it says it leaves about 4,000 men still on our side. So that doesn't make sense does it? And the further conclusions are stated that the whole action started by Mihjlovic for disobedience was completely futile. The threat of retaliation measures alone had a frightening effect. And then it goes on to say shootings of those even suspected only of sabotage show that our methods were right. That's also illogical because it should read even the threat that those suspected of sabotage would be shot as shown, that it was successful and that the method therefore was right, because in that period of time nobody who was suspected of sabotage was shot simply because they were suspected of sabotage. Those suspected of sabotage might have been shot in the scope of a reprisal measure, but not because they had been suspected of sabotage.
Q. In this Exhibit 220 there are notes about telephone conversations. Are these notes by your staff?
A. No. Strangely enough, these are long-distance telephone calls made by the staff of Army Group E at a time when the new organization was already in force. Army Group E was in Saloniki, whereas my staff was in Belgrade.
Q. How do you explain that file notes by different staffs were compiled into one document?
A. I cannot explain it at all. I simply don't understand it.
Q. Now, about Exhibit 221, on Page 21 in the English Document Book. Did you know that teletype letter at the time?
A. I probably knew it.
Q. What about Exhibit 223, which is on Page 24 of the English Document Book?
A. That I also probably knew.
Q. It's on Page 39 in the German Book. In this Exhibit 223, which is on Page 24 of the English Book and Page 31 of the German Book we have a teletype letter showing the total losses of the insurgents forces on Page 2 of the document. Now, what can you tell us about these relatively high figures, bearing in mind that here we are concerned with only about 13 days during the period of time when this report was drawn up?
A. No, that's a mistake. The total figure applies to the whole year.
Q. You mean the total number of insurgents shot in combat or as reprisals up to the 8th of September 1942?
A. That's the total figure between August, 1941, and September, 1942.
Q. You mean the figure of 52,362?
A. Yes.
Q. What I mean are the smaller figures higher up on that page They concern the period of time between the 25th of August and the 8th of September 1942 don't they?
A. Well, there was considerable fighting going on at the time, which cannot be seen from this report, or at least not from the document because only fragments of the whole report are reproduced here.
Q. And here again you have this contract that very few people have been shot in reprisal --only 37.
A. How many?
Q. Thirty-seven.
A. Captured and arrested 3,325.
Q. Finally reference is made in this document to deliveries of grain from Serbia. It says that these grain deliveries were not possible. Who decided that grain should be delivered from Serbia to Greece?
A. What agency in the Reich decided on this I cannot say. It was either the Minister of Food or somebody working on the Four-year Plan, but certainly not the Armed Forces Commander Southeast -- not a military agency.
Q. Were you at least able to have any influence on these things?
A. We have attempted time and again to send food to Greece from our own area, but we had not the power to do so. We had to file applications, and they were decided on according to the situation.
Q. Will you now please look at Exhibit 225, Witness, which is on Page 28 of the English Document Book. The heading is the Fuehrer and Supreme Commander of the Armed Forces, and it deals with the annilation of enemy sabotage troops. Is that what is known as the Commando Order?
A. No, this is not the Commando Order. This is a letter by Hitler to Commanders-in-Chief and Commanding Officers which gives the reasons why the Commando Order was issued.
Q. Who read that letter?
A. I don't know for certain. I assume that my Commanding Officer received it and probably he also showed it to me at the time.
Q. Can you still remember the actual Commando Order?
A. No, not the details, but the Commando Order as such and its essential contents, yes.
Q. Did you see the Commando Order among the documents of the Prosecution?
A. No.
Q. What were the contents of the Commando Order as you remember?
A. The contents were concerned, to put it briefly, with the fact that in the future so-called sabotage and Commando units were to be killed in fighting. These were sabotage and Commando units which had landed from the Sea or had parachuted down from an air-craft.
Q. What was done with these units?
A. They were to be killed in combat. They were not to be taken prisoner.
Q. Was this Commando Order passed on by your Commander in Chief to his subordinates?
A. Yes.
Q. Did you Commanding Officer or you yourself have any misgivings about passing on that order?
A. General Loehr was fully aware of the character of this order, and he discussed this fact with me. It was this order particularly which showed, on the one hand, that in the order something was wrong. The reasons given in this document here were, I must admit, extremely impressive. What the sabotage units did, the way they conducted themselves, using both uniforms and civilian clothes, and therefore appearing as soldires or as civilians, depending upon how the fighting went, was not in order either in our opinion. Now, the Commander in Chief was faced with the problem. On the one hand he had the demand of unconditional obedience, which applies to a soldier at all times anywhere; and, on the other hand, there is no such thing as conditional obedience; he had the feeling that all was not well. On the one hand, the extremely harsh punishment connected with the order that every one who would not act according to those lines laid down in the orders would be treated, as it was ordered for the Commandos.
That is to say, he himself would be shot. And, on the other hand, the clear realization that if the order would not be passed on, there would be in the place of Loehr within two days a man of whom Hitler would have known, "He's going to do what I want him to do." Then from my own point of view, I was not responsible whether or not this order was passed on, but was I to guide Loehr into a strong case of disobedience with all the consequences which were threatening his own person and, as we know, for his family?
THE PRESIDENT: We will take our afternoon recess at this time.
(A recess was taken)
THE MARSHAL: Persons in the Courtroom will find their seats.
The Tribunal is again in session.
THE PRESIDENT: You may proceed.
DEFENDANT HERMANN FOERTSCH DIRECT EXAMINATION (Continued) BY DR. RAUSCHENBACH:
Q. Witness, before recess, we had started discussing the so-called Commando Order and that on the basis of Exhibit 225 on page 41 of the German text and page 28 of the English Document Book. You have already said that this Exhibit 225 does not represent the actual Commando Order but it is a communication by Hitler to the Commandersin-Chief giving the reasons for this Commando Order and you have further described that the then Commander-in-Chief General Loehr and you yourself saw yourselves faced with a certain conflict on the basis of this Commando Order and especially concerning the passing on of this Commando Order. You have told us why this order had to be passed on in spite of these facts and to what extent it was justified according to the reasons which Hitler gave. Now take, for example, if this order had not been passed on at all, what would have happened? Would it have been made known to the subordinate units in any case?
A. Yes, it would have certainly been made known. In Hitler's reasons which are shown here in this document and which are also contained in the order itself, as far as I remember, it was clearly announced that this procedure was to be publicized. The units therefore would have gained knowledge of it in any case.
Q. Before the recess, you have told us, witness, that on the basis of this Commando Order of Hitler, one could maintain different opinions, what I mean is that there were certain justifications for this Commando Order, Do you mean the following passage in Hitler's communication contained in Exhibit 225?
It starts on page 5 of the original and that is in the document book, the third page of this document; and the sentence reads: "This kind of warfare is without any danger whatsoever for the opponent, for since he leads his sabotage units in uniform but on the other hand gives them civilian clothing as well, they can appear as needed either as soldiers or as civilians." It is the first sentence on page 29 of the English document book.
"While they themselves have the mission to liquidate ruthlessly German soldiers or even inhabitants who hinder them, they are not indanger of suffering really serious losses in their activities, because if the worst comes to the worst and they are caught, they can give themselves up immediately and thus they believe they will fall under the Geneva Convention. There is no doubt, however, that this is the worst kind of abuse of the Geneva Convention, all the more so since some of these elements are criminals who have been released from jail and can rehabilitate themselves by such actions."
Are you thinking of this passage in Hitler's reasons when you said previously that in your opinion you had to fight, concerning the pro's and con's of this order?
A. Yes, I was thinking of this passage which has just been read.
Q. The Commander-in-Chief Southeast--did he make any additions to this order of Hitler's?
A. I seem to remember that additions were made. Regarding the band warfare, this order was not to apply, but only for the landing or parachuting of such men where we essentially thought of a coastal battle; but after such a long time I cannot recollect the exact text of these additions.
Besides, General Loehr ordered, in order to prevent certain things, orally to the subordinate commands, that before this order was applied, the Armed Forces Commander Southeast had to be informed and his consent had to be gained. He believed in this manner he could best prevent the practical carrying out of this order.
Q. Was this oral additional remark of your Commanderin-Chief--passed on?
A. As far as I remember, yes, because it was ordered.
Q. And who passed on this oral directive?
A. I cannot say that with certainty. I assume it was the responsible Ia.
Q. Was the Commando Order carried out at all in the Southeast?
A. I know of no example, of no case where it was applied.
Q. The members of the regular belligerent forces of the allies who worked together with the bands--were they treated in accordance with the Commando Order?
A. No, they were not treated in accordance with the Commando Order.
Q. Can you give examples for this statement?
A. I know of two examples, I can name them from the documents of the prosecution. They were contained in Volume XII in Exhibit 309 but I do not know the actual page at the moment. One example concerns an occurrence near Alexinac in Serbia and the other concerns an occurrence near Lauplia in Greece.
Q. Exhibit 309 is contained in Document Book XII on page 101 of the German and 121 of the English text. Have you got it in front of you?
A. Yes.
Q. And which is the actual passage that you mean?
A. I mean the daily report of the Armed Forces Commander Southeast of the 9th of August, 1943. It says there under No. 4, "Near Alexinac, 20 kilometers north of Nish, one English officer and a non-commissioned officer were captured."
Q. That is contained on page 37 of the original and it is on page 18 of the document here. It reads: "Near Alexinac, one English officer and non-commissioned officer were captured."
What would have had to happen to this officer and NCO according to the Commando Order?
A. If the Commando Order had been applied for this area, for the band warfare, then they would have had to be killed in combat.
Q. And you mentioned another passage?
A. Yes, another passage is the daily report of the 23rd of August, 1943. It is on page 25 of the German text of this document and towards the end of figure two under Greece it reads:
"In the areas Lauplia-Argos, two parachutists probably of British nationality were apprehended."
Q. That is an extract of page 51 of the original?
A. Yes, that is correct.
Q. And can you give us another example?
A. I know of another case. This case, however, did not occur during my time. It concerns the capture of a Commando unit which was led or where participated a relative of Prime Minister Churchill. I heard of this incident by way of a talk.
Q. I will show you, witness, a passage from Document Book XXI of the prosecution. This will be Exhibit 488 contained on page 65 of the German and 75 of the English Document Book.
A. I am sorry, I am afraid I haven't got that document book.
Q. I have got a photostat of the original here which I will show you and there is some talk about so-called members of military missions which according to the contents of that document should have really been treated in accordance with the Commando Order. However, in actual fact, they were not treated in that manner.
(Handed document to witness).
A. We have here a memorandum of the operational department of the OKW concerning an alteration, or rather expansion, of the Commando Order which was wanted by Hitler. And it says here clearly "In accordance with issued orders, the British apprehended near Roesslsprung which is a cover name for an operation have to be treated as prisoners-of war." The Commando Order has so far not been applied to such missions and an extension to such missions had so far not been ordered. This document therefore, shows that the Commando Order in the Southeast was not applied in band warfare.
Q. Witness, we will now turn to Exhibit 227 in Document Book IX. That is on page 47 of the German and 32 of the English Document Book. These again are teletypes--that is daily reports, to the OKH and the OKW. Did you know those reports, the way they are contained here in the document book?
A. I probably knew those reports but not in the abbreviated form in which they have it here.
Q. There are a number of shootings mentioned in these reports. Can you give the reason for these shootings?
A. No, I am afraid I cannot give the reasons because statements which might have probably caused the shootings were not taken over into the document books from the original reports.
Q. Was it, generally speaking, this way? In the daily reports, there were besides these shootings, such as they were reproduced in the document books, there were also the reasons for it. That is, the number and kind of the surprise attacks?
A. Yes, certainly. That can be seen from the reports which were presented here during my examination either in full text or in excerpts.
Q. Witness, can one say, generally speaking, that in the daily reports, such as they are submitted by the prosecution in the document books in the places where there are usually dots in the document books, there were usually the reasons for the reprisal measures -- that is, the reports of the attacks, etc?
A. That might not have been that way in every case but generally speaking it can be assumed that it was that way.
Q. Then, it was in the same manner as we have seen it from a few examples of original documents which you have read here during the last few days and we see that in the documents of the prosecution the causes for the ordered reprisal measures are omitted?
A. That is the case.
Q. With the passing on and compilation of these daily reports, did you take over any responsibility for the measures, especially reprisal measures reported in these messages?
A. No, I can only repeat here that my task consisted in summarizing the essential parts of the reports which we received and to check the correctness of the formulation-- that is, the formal correctness of the report.
Q. In these daily reports, we have at various times occurrences which happened in the Italian occupation area. Were the Italian military authorities subordinate to the Armed Forces Commander?
A. No, but we had liaison with the Italian armies. And through liaison we learned, if sometimes belatedly, what had occurred in these Italian occupation areas, and inasmuch as the incidents were important or interesting they were reported by us too in order to give a complete as possible picture concerning the Southeastern area to the OKW.
Q. Witness, we will now turn to Exhibit 228. It is on page 65 of the German text and on page 51 of the English Document Book.
This is a file note in a war diary of the Commanding General and Commander in Serbia of October 1942. It concerns a conference of Chiefs-of-Staff in Salonika. Did you know that document?
A. No, I didn't know that document but its contents is of course known to me because that conference took place with my staff.
Q. This document again is just an excerpt as one can see in the dots between the paragraphs. I will show you the original.
(Handed witness the original.)
On the first page of Exhibit 228 in the Document Book, there is a sentence saying that our division seemed to be frequently of an attitude too much in favor of the Serbians. The SS would act differently. How do you explain that sentence?
A. That is the reproduction of an opinion of the OKW addressed to the Chief of Staff.
Q. Do you see other typical passages in the original which are not contained in the Document Book?
A. Yes, I just notice here a further communication where it reads: "There will be no support assured from above against the Serb murders." That means that we, regarding the already mentioned Ustsha tendencies, had made representations but that a support from Hitler's side was not to be expected and I remember in this context that General Bader with the consent of General Kuntze, had demanded a court martial procedure which against Ustasha men which was also started on the part of the Croats. Eventually, however, this procedure was prevented and forbidden by Hitler himself.
Q. Witness, in Exhibit 228, there is apart from the note regarding the chief conference an order by the Commanding General and Commander in Serbia dated the 10th of October. That is on the second page of the document, on page five and six of the original. Did you know that order?
A. I cannot say that with certainty. It went for information to the Armed Forces Commander and I would assume as probable that I knew it.
A I cannot say that with certainty. It went for information to the Armed Forces Commander, and I would assume it probable that I knew it.
Q And again there is some talk about political commissars were they, in accordance with this order, treated differently from other band members?
A No, they were never treated differently from other band members.
Q Then regarding Exhibit 229, which is a report by the Commanding General and Commander in Serbia about the Communist Resurrection movement in the area of former Yugoslavia, dated 30 Oct. 1943, which is page 73 of the German, and page 61 of the English text. Did you know that document?
A No, I didn't know the document.
Q Did you know the rank insignia of the Communist bands which are mentioned on the second page?
A In detail I did not then. I knew that occasionally such insignia were worn.
Q You said occasionally, were these insignia not worn uniformly and everywhere?
AAccording to the reports which we received and according to the limited observations which I made on captured band leaders, they were not worn at all times.
Q Exhibit 230 on page 75 of the German, page 65 of the English Document book, we have information about the enemy, an enclosure to the 718th Infantry Division; did you know this information about the enemy?
A No, I did not know it.
Q And now quite a different question, witness, you as Chief of General Staff and as Commander in Chief Southeast, did you have a great number of telephone conversations?
A Yes, a great number of telephone conversations.
Q. Did you frequently talk to the Chief of Staff of subordinate units and command authorities?
A Yes, of course.
Q Were these conversations long or short?
A If I talked to the Chief of the Subordinate staff then I usually talked for a longer period about those matters which were of immediate interest.
Q The opinions which you uttered during these conversations, or let us say the directives contained in these conversations, were they your personal opinions?
A No. If I wanted to express personal opinions then I said so expressly. For instance, if my personal opinion deviated from an official one I would, for instance, use a phrase like "I personally am of another opinion, but it has been ordered in this way." Or I would say, "I don't understand it, but it has been ordered in this way."
Q If you made no personal remarks of a special nature, what then did that mean what you said on the telephone, was it your personal opinion or what was it?
A It was in the course of my official activity as Chief of Staff, and when the conversation concerned directives then they were given on behalf of the Commander in Chief.
Q Were these conversations put down in the files by you?
A No, I have never noted down my telephone conversations.
Q Did other members of your staff note down your telephone calls?
A No, only my personal ordnance officer could listen, and he did not have to do it during the day, but I had ordered that during the night when I had been awakened up and the call therefore came on his instrument, in any case then he had to listen in.
Q And how were especially important telephone calls which you had laid down in the files?
A In the usual procedure, not at all, but I later asked that decisions or directives issued over the telephone was to be supplemented by teletype, or by written order and thus confirmed.
Q Please have a look at Exhibit 231, which is on page 76 of the German text, and page 67 of the English Document Book. It is the War Diary of the Commanding General and Commander in Serbia, 1-A, of November 1942. On the 1st page of the text of the 26 November 1942 we find a note: "Army chief requests by telephone shooting to death of all mayors remaining passive." Can you remember that telephone conversation?
A I had of course completely forgotten that conversation among all the thousands of conversations I had, but from the whole context of these documents I did refresh my memory and now recollect this particular document.
Q What kind of a passive attitude of mayors did you mean?
A I have mentioned previously in another context the action Mihajlovic, which lead to disobedience on the part of the authorities towards the occupation forces, and in that connection he succeeded in persuading a few mayors to passive resistance, and those were the mayors I meant.
Q And why did you demand the shooting of these mayors?
A In this memo in the files by way of a file notice it is rather briefly expressed. I don't remember anymore. Either there was an evening or rather daily report which gave the cause for the decision or a remark by General Lehr in accordance with which I phoned Geitner, or there was some other cause because of which I received this order.