Q And when did that telephone call take place?
A On the 26 of November 1942.
Q Will you please look at Exhibit 237, which is in the German Document Book page 124, and in the English 117. It is an Activity Report of the 704th Infantry Division, and it contains the following passage under the 21 November 1942. It is on the second page of the text. "Division 21 November 1942." You will always find the date in the left column, the division, -- "Post Proclamation of Commanding General and Commander in Serbia." It states that "Serbian officials of the civil service are under German protection and in the event that such persons would be wounded" 5 hostages will be shot to death and if such persons will be killed 10 persons will be shot to death." Then we have the following: "Officials of the Public Services who have resigned their office without compulsion will have proceedings taken against them." After you have seen this now can you give us further explanations why you demanded that the passive mayors should be shot?
A Well, from this submission the proof can be seen for the already mentioned disobedience action and also the proof for the fact that such officials whose attitude was passive were to come before a summary court marshal, and that would be the consequence of their activity, so that in contrast with this announcement of the 21 November the telephone conversation of 26 November does not bring anything decisively new. Besides during those days we received the band combatting regulations of 1942, and in these regulations there is a special remark "within the scope of supervision of the population," where it says that mayors who do not execute their duties are to be prosecuted, and in this connection there is also a reference to the death penalty.
It is possible, that the knowledge about this new regulation also influenced the order, which is at the bottom of this telephone conversation.
Q During the subsequent period were mayors actually shot?
A Nothing to that effect is known to me, and in the documents available here I have not seen any example concerning it.
Q You have just mentioned the so-called regulation for band warfare; was this regulation valid for the Southeast territory?
A It was valid for the whole of the armed forces.
Q And how had this regulation been distributed?
AAs all regulations of that time it was distributed by the competent office of the OKH to the Division, and was issued in the necessary copies so that it could be automatically distributed right down to the companies.
Q Did the Armed Forces Commander make any additional remarks to this regulation?
AActual additions or amendments to regulations were not permitted to him on principle, but I do recollect that a very short decree was issued which pointed out that this new regulation was to be valid also for the Southeast and that the special conditions prevailing in the Southeastern area had to be considered.
Q What were these special conditions?
A I only remember two points. One was the geographical conditions, the territory was of a rather special kind, it was a difficult mountainous area compared with the large forest areas in the east. The second point in question, if I remember correctly, was the following: On other fighting fronts there was a uniform and complete front where the band fights took place in the rear, whereas in the eastern area there was no such closed fighting front. Instead the band activities stretched over the whole area and were constantly fluctuating.
Q Was this regulation binding for the troops?
A Yes, just as much as all regulations.
Q Now, let us have a look at exhibit 232, it is on page 69 of the German text and on page 78 of the English text. I beg your pardon, I really refer to a different document, I mean the order by the Armed Forces Commander for the intensified combatting of bands in the winter 1942-1943. I will have to refer later to this order because I cannot find out what it is, or can you find out what it is?
A Exhibit 232, I am afraid I don't know the page number.
Q Exhibit 232, did you know that order?
A Yes, I did know it.
Q Was it initialed by you?
A I cannot say that from the document, I would have to have the original document.
Q I will show you the original. It is on page 69 of the English document book.
(The document is handed to the witness.)
A Yes, that order bears my initials.
Q It is on page 78 of the German document book, page 69 of the English text. What does the initial mean?
A It means, as I have already said, that the formulation of the order complies with the decisions of the Armed Forces Commander and/or with the orders given by superior officers and that he is formally in order.
Q And what was the cause on the 7th of December 1942 to issue an order concerning the intensified combatting of bands?
A That can be seen from the first few sentences, where there is some talk about the expansion of the over-all position in the Mediterranean and in that connection there is some talk about the increased inciting and supporting of insurgent movements in the Balkans through enemy forces.
Q Did this order primarily mean the military combatting of the bands or could anything be taken from it regarding a policy of terror?
A No, here it reads: intensified combatting of bands and therefore is an order intended for the military combatting of the band activities.
Q What does the expression mean at the bottom of the paragraph: "Every band formation which proclaims itself must be nipped in the bud, every enemy group which appears must be destroyed and exterminated immediately......"?"
A That means that the band, as such, had to be destroyed, that after the fighting it should no longer be in a position to proclaim itself as a band.
Q Did that mean that every individual member of the band was to be killed?
A No, it meant that the individual member of the band was no longer to be in a position to join up with a new band or to reorganize the old band.
Q What is understood by the expression "Combat Units" and "emergency units"? (Kamepfstaffel and Alarmeinheiten).
A These are organizational expressions, which are intended to increase the fighting strength of the own troops employed. They are merely organizational measures with a division or a regiment and which expresses the structure of a certain combat unit. May I say something else?
A I can just see from the original document that the omission in the document book is of quite a material nature. In the document here, that is the document which is reproduced in the document book, it looks as though Figure 2 followed immediately the demand for the destruction and extermination of the band groups, because it goes on to say: "This knowledge, forces us to an intensified conduct of warfare." In the original we see in the order, before the words. "This knowledge.." the following sentence:
"If we do not succeed up to spring in doing this we will not have fulfilled the task put to us. This is not only to apply to Serbia, but to Croatia as well, etc...."
Then it goes on to say, "this knowledge," that means the knowledge refers to the general task of the Armed Forces Commander Southeast.
Q Witness, we now turn to exhibit 233, it is on page 73 of the English document book and 81 of the German. This is a report on Experiences in connection with the dynamiting of the Gorgopotamos Bridge and it is dated 15 December 1942. The report bears your signature; why did you sign this report?
A Because it is not an order, which contains an evaluation or a reprimand, it is a report on experiences which can be seen by the subject. And a report on experiences constitutes no basic decision so it is therefore not binding for the recipient.
Q Now from the formulation, such as it is reproduced in the document book, one might easily assume that it was an order because it says for instance:
"Take Hostages! Arrest non-residents! Employment of the civilian population extensively and ruthlessly for the construction of fortification!"?
A If I may see the original I may possibly give an explanation.
(The document is handed to the witness.)
Here too the omissions distort the meaning. Looking at the original I see that this report on experiences has two parts, one is the chronological sequence of events such as it reads here in the document book, the second comprises the conclusions drawn from these events. The heading of that paragraph has been omitted. One can further realize that the conclusions contained under the letters A to E are a number of tactical conclusions, for instance the fact that all obstacles have to be guarded by machine gun fire, that the individual objectives are to be built up to the points of resistance. Then at the very end these are the paragraphs F and G, which in this document book appear of course, as very outstanding.
Q What is to be understood under the expression contained in paragraph "F": "to call to account the civilian who was strolling their previously, if necessary to shoot him"?
A That means here that the civilians who were to guard the railroad in the event that sabatage acts took place were to be taken to account. It means that an investigation was to take place whether the person concerned was through negligence or through aiding and abetting responsible and guilty or whether he himself had committed a sabotage act which was also a regular occurrence. "To take to account" means "investigate matters." and "make accessible to a legal investigation." that would be under those circumstances summary court martial so that if it had been proved that the person concerned was guilty and the proper requisites were in existance then it would be carried out. Then death penalty would be carried out.
Q The sentence reads on: "In case of a surprise attack, to punish the villages situated near the locality of the attack." Why under certain circumstances were the villages near these localities of the surprise attack to be punished?
A On the occasion of the very frequent sabatage on railroads it had been repeatedly established that the villages near the railroad line were the starting and supporting points of such sabatage and band enterprises, that the bands were quartered there, got food there, were directed there and found every kind of support; and this sentence can be referred back to the experience that on the occasion of such a surprise attack the villages near the surprise attack should be and could be punished.
Q Why was the civilian population asked to work on constructions of fortifications?
A The construction of fortifications means merely a building up of the security arrangements of the railroad line. That is, near the most important objectives: bridges, tunnels or rather difficult bends, steep slopes, et cetera.
There were special security measures. There were machine gun posts of a varying strength and they, of course, had to be dug in and such a construction of fortifications is meant here; and, in my opinion, it was entirely justified to call in the civilian population to help there because, after all, the railroad did not only serve military purposes but also economic purposes, in other words, the food supply of the population, the transport of passengers, et cetera. Besides, it was obvious that the bands and individual perpetrators of sabotage did not only fight against the occupational forces but also -- and that in Greece, too very much against the part of the population which were of a different opinion.
Q How do you know that?
A I knew it from reports which we received and I have found a rather interesting confirmation of that opinion. A few months ago I found in a periodical which appears in Vienna -- I believe it is entitled "Europaeische Rundsihan" and from that paper I remember as a confirmation the report of an interview with a Greek by the name of Sofianopolos. He was Foreign Minister of the Leftist Government which ruled in Greece for a certain period after the end of the war. He was an old fighter of the EAM and ELAS units which have been frequently mentioned here. This man who after all is in a position to know says as a refugee either in England or in the United States the following -
MR. FENSTERMACHER: Your Honors, I object to the witness quoting what he read in a newspaper.
THE PRESIDENT: For what reason?
MR. FENSTERMACHER: Whatever he read in the newspaper is purely hearsay Your Honors. He can refresh his recollection regarding certain facts which he knew at the time -- he can tell about that but he is simply restating here what he read in the newspaper. I submit that is inadmissable.
THE PRESIDENT: The statement is in the nature of hearsay and only to the extent that it may refresh his memory on matters of which he has personal knowledge, the Tribunal is not interested.
Q Well, will you then continue?
A This man says the following.
MR. FENSTERMACHER: Your Honors, he is simply restating again what he read in this newspaper article.
THE PRESIDENT: The objection will be sustained.
Q We will then turn to Exhibit 234.
DR. RAUSCHENBACH: Your Honors, I want to apologize for the fact that the witness continued exceptionally. I listened to the German translation and there the word "not" was omitted.
Q I continue with Exhibit 234, page 83 of the German text, and page 76 of the English Document Book. This is an evaluation of the situation sent from the Commander of the German troops in Croatia to the Wehrmacht Commander Southeast. Did you know that document at the time?
A I don't believe I did. I was absent during the time and I don't believe that I read it after my return.
Q And the subsequent exhibit, 235?
A I believe that I knew it -- most likely I did.
Q This exhibit 235, page 79 of the English document book, after the subject, "Estimate of the Situation of the Enemy," it mentions the "Reich of the Supreme Communist Leader Tito." What is meant by this expression?
A May I remind you that today in another connection the problem was touched upon how the Italians occupied their area. On that occasion I talked about zones which they had installed for certain reasons and the Italians had evacuated a part of these zones. The Armed Forces Commander Southeast warned very strongly against such evacuations because it was quite obvious that in that case a new herd of bands would establish itself there and that is what actually happened; the Italians evacuated the area; we could not follow up fast enough and now we found that a new band area established itself here and we designated it rather ironically as the Reich of Tito and that is why it is put in in inverted commas here.
Q And in this evaluation there is some talk about 63,000 armed Tito men. Don't you think that that is rather a high figure?
A Yes, it shows here the numeric superiority which has already been mentioned and which also is one of the reasons for the heavy losses.
THE PRESIDENT: Pardon me. We will adjourn at this time until nine o'clock tomorrow morning -- nine-thirty.
THE MARSHAL: The Court will be in recess until nine-thirty tomorrow morning.
(The Tribunal adjourned until 0930 hours 15 October 1947)
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 15 October 1947, 0930-1630, Chief Justice Wennerstrum, 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 defendants are present in the Courtroom except the defendant von Weichs, who is still in the hospital.
THE PRESIDENT: Judge Burke will preside at this day's session.
JUDGE BURKE (Presiding): You may proceed Dr. Rauschenbach.
DEFENDANT HERMANN FOERTSCH DIRECT EXAMINATION (Continued) BY DR. RAUSHENBACH:
Q. Witness before we recessed we had looked at Exhibit 235, which is contained in document book 9. We now turn to the next exhibit, that is exhibit 236, contained in document book 9, it is on page 88 of the German text and page 83 of the English text. This is a so-called "Enemy Intelligence Review", of the 718th Infantry Division. It is rather an extensive document which gives explanations about the appearance and uniforms of the bands, etc. Did you know this document before this trial?
A. I did not know this document prior to this trial.
Q. Did you know that the Tito bands were organized in this manner, the way it is layed down in this document?
A. By and large I was of course informed about the organization of the bands.
Q. In spite of your knowledge of the organization of the bands-you did not regard them as regular belligerents?
A. No.
Q. And why not?
A. Because of the reasons I have already stated here. After the capitulation had been agreed upon, every incident of carrying arms or using them was an illegal action and therefore contrary to International law and the same applies to the fact that the country was occupied. Besides, these bands did not comply with the provisions of the Nague convention, which have been mentioned here frequently.
Q. The bands under Tito's command, were they too not recognizable from a distance and did it apply to them too that they did not carry their arms openly?
A. No, they were not recognizable from a distance and they too did not comply with the regulations of carrying arms openly.
Q. Now let us turn to exhibit 237, this is on page 124 of the German text and on page 117 of the English document book. This is an activity report of the 704 Infantry Division from the period of 1 September 1942 to 31 December 1942. Was this report known to you at the time?
A. No, activity reports from divisions did not reach me.
Q. Was this division subordinate to you?
A. No, no unit of any kind was subordinated to me.
Q. In this activity report in the entry of 24 December, that is on page 13 of the original and on page 7 of the document, an incident concerning Mladenovac is mentioned, it is on page 123 and the following pages in the English document book:
Lieutenant Konig, Executive Officer 11 Battalion 724 Grenadier regiment and 2nd Lt. (Med) Dr. Engelhardt. Battalion physician of the 2nd Battalion 724th Grenadier Regiment were fired on in Mladenovac at 14.30 hours by a 20 year old women who is assumed to be a Communist. They were severely wounded (Shot through lung and stomach) and immediately transferred to the Military Hospital in Belgrade. A former Cetnik leader was also shot to death by the woman while trying to arrest her. Later she shot herself. The 724th-Grenadier regiment has ordered the encirclement and a search of Mladenovac. 72 men and 52 women were arrested. A part of the population fled immediately after the attack on the officers. Local Police and Serbian state-guard participated without causing trouble in the measures of the military. 3 pistols were found. The Division applies for authorization to shoot to death 50 hostages and/or people detailed as retaliation prisoners in reprisal."
Witness, was that incident known to you at the time?
A. During those days from the 19th to the 30th of December, I was absent on an official trip and brief leave. It is possible that I did gain knowledge of the incident after my return.
Q. In the entry of the 27th of December on page 16 of the original, we find a Fuehrer order concerning the attitude in the combatting of bands. It says:
"The Division announces the Fuehrer order pertaining to procedure in the combat against bands. According to this, the fight against the Communist Bands which are operating with all possible means is to be carried on ruthlessly and without any limitations in the sense of soldierly chivalry or of the Geneva Convention.
Consideration of any kind and pity for members of bands or for followers does not exist."
Was this Fuehrer order mentioned here known to you?
A. I cannot say that either because according to the date it falls during the period of my absence.
Q. Could that by any chance be the so-called Commando order?
A. I think that is out of the question because the Commando order was issued at the end of October and it is unlikely that an order or that sort would take two months until it reached the Division. Besides the Commando order did not apply to the combatting of bands.
Q. Do you have any clue concerning the kind and manner of the order?
A. I can only offer assumptions here. Possibly it is a reaction of Hitler to the incident of Mladenovac, but this is only an assumption of mine.
Q. Now, let us turn to exhibit 238, we find it on page 132 of the German text and on page 127 of the English document book. Here again we find daily reports from the Commander Southeast to the O.K.W. Were those reports known to you?
A. Possibly I knew the reports, except when I was absent for a few days.
Q. Are these reports complete in the way they are put down in the document book?
A. No, here too we have to deal with abbreviations in the same manner we have discussed previously.
Q. The next exhibit in this document book 9 is exhibit 242, we find it on page 167 of the German and 171 of the English document book. It is a directive, Instruction No. 47, with the heading, "The Fuehrers Instructions for the divisions of the Southeast Area." For what reason was this instruction issued and what was its purpose?
A. This instruction was to make the armed force commander Southeast to the so-called Commander-in-Chief Southeast.
Q. That was in December 1942?
A. Yes, it was to take effect as of 1 January 1943. The amendment was made in order to prepare the operational controls in case of invasion of the area would take place. As the instruction explains, the idea was in case of invasion, the then Commander Southeast is now Commander-in-Chief Southeast and was to be chief of all German and Allied forces in the Southeastern area.
Q. On the basis of this order did anything change concerning the executive power in the Southeast?
A. No.
Q. Did your authority change?
A. You mean my personal authority?
Q. Yes.
A. No.
Q. Witness, we will now turn to document book 10 of the prosecution and to begin with I shall ask you again whether the survey of the exhibit numbers which you did not know prior to this trial is correct. These are the following: Exhibits 244, 246, 247, 248, 249, 250, 253, 256, 257, 258, 259, 260, 262. All these exhibits were charged to you by the prosecution as incriminating; did you know these documents prior to this trial?
A. No, I did not know them prior to this trial.
Q. Now, let us look at exhibit 243, that is the first exhibit in this document. It is on page 1 of both the German and English text. It contains a directive of the Commanding General and Commander in Serbia and its subject is daily reports. It is addressed to the 704 Infantry Division and it reads at the beginning:
"The High Command of Army Group E demands that the daily reports be more precise than hitherto so that a more detailed report can be furnished to the OKW."
Was such a request made by the Group E?
A. Yes, that is correct and can be traced back to the order of the O.K.W. to report in a more detailed manner.
Q. What was your attitude to this request by the O.K.W.?
A. I was not very happy about it. This order to report in a more detailed manner had as its consequence that the superior order would interfere in more detail.
Q. Witness, did you ever see the original of this document?
A. You mean exhibit 243? No.
Q. Witness, under figure 7 of the document, insofar as it is contained in the document book, there is some reference to the Fuehrer orders; which orders are meant?
A. That cannot quite clearly be seen, but I assume that it concerns the previously mentioned order concerning the band combatting at the end of December and possibly it might also refer to the Commando Order.
Q. Under figure 7, it reads in the last sentence which is contained in the document book:
"In case by way of exception shooting is not planned, the report is to read: 'Will not be shot at the moment, as useful for own information reasons.'" Is this formulation not in contrast to the direction of the Armed Forces Commander Southeast when he passed on the order?
A. I don't believe it is. If one knows the connections as they existed at the time, then one interprets the sentences which have just been read correctly. If offered a chance to deviate, which was occasionally made use of.
Q. Will you please repeat what you told us yesterday, what was the additional remarks which the Armed Forces Commander Southeast made to the order?
A. As far as I remember, the additional remarks had the meaning that the so-called Commando order was not applicable to the combatting of bands and I mentioned additionally the other instruction concerning events which might come under the Commando Order. One had to confer with the Armed Forces Commander prior to taking any measures.
Q. And what is the connection with the fact that can be drawn from this sentence of the Armed Forces Commander Serbia:
"In case by way of exception a shooting is not planned, the report is to read: 'Will not be shot at the moment, as useful for own information reasons.'" What could the parson who received this order do with it?
A. He was in a position to avoid and circumvent a shooting if he reported that the person will not be shot at the moment and then quite frequently there was no investigation at a later date and thus it was possible to somewhat obscure the issue.
Q. And now let us turn to exhibit 245. Were the reports contained in this document to the Wehrmacht Commander Southeast known to you?
A. It is likely that I knew those reports.
Q. And now we turn to exhibit 251, that is on page 22 of the German text and on page 28 of the English text. This is an order of the Commander of the German forces in Croatia. This subject is: "Exercise of Executive Power." Will you please turn to Figure IV-A, where it says:
"Rigorous measures are to be taken against the population. In unreliable areas the male population from 15 to 50 years is to be lodged in assembly camps. Deportation to Germany is intended."
What kind of measures have we got here?
A. We have here a measure which was made in consent or rather at the insistance of the Croatian government. In the State of Croatia there was compulsory military service and large parts of the population tried to get around it or rather withdrew from it because of the band terror. The Croatian government at the time, on instructions, or rather in agreement with the German government, wanted to establish so-called legion divisions. Those were divisions with a nucleus of German staff and Croatian enlisted men. These divisions were trained in a training area near Vienna. The able bodied men were sent there, they were examined there regarding their suitability to be taken into such a division. Generally speaking, as far as I recollect, there was never complete transportation of these people there. There were two reasons, first the German units had for the most part not the technical possibilities to transport these people, there was no transportation and no guards, The second reason was that these measures were carried out incompletely and unwillingly. In the areas where the bands were located it was impossible to reach the actual population as the men who felt inclined toward the bands had disappeared for the most part when the German troops got there and the people who were friendly inclined toward the German troops were intended to be spared, therefore, according to my recollection, these measures were carried out on very rare occasions.
Q. Under 4-B of this exhibit we find the following sentences:
"Partisans and partisan suspects, as well as civilians in whose homes arms and ammunitions are found, are to be shot or hanged immediately. Their homes are to be burned down. " I am now interested in learning from you how it was possible to carry out such measures without proceedings.
A. That corresponded with the already mentioned new band regulation which was was issued in November 1942. Therein it was said that contrary to former regulations the bandits were to be shot to death on the spot and that every leader of a unit was responsible for the fact that these measures were carried out immediately. Exceptional cases he would have to report giving his reasons. That about is the contents of the order and this regulation also applied to owners of weapons and ammunition the way it is laid down here.
Q. After the regulations for band warfare had been issued had summary court-martials become superfluous?
A. No, not really. There were summary court martials just as there had been before.
Q. And what was done in connection with the actual combatting? What I mean is, what happened to the band members who were shot in connection with combat operations?
A. They were shot according to the band regulations without any formal procedure.
Q. Did I understand you correctly, that your testimony now concerning summary court martials where shooting was in connection with combat action referred to the time before the band regulations were issued?
A. Yes, that is correct. Up until that time the so-called franc tireur regulation of autumn 1939 was valid.
Q. Exhibit 261, contained on page 72 of the English text, contains some daily reports to the OKW. Did you know those?
A. Probably those reports were known to me insofar as I was not absent at the time.
Q. This Exhibit 263 contained on page 77 of the German and 100 of the English text -- we find a regulation of the commanding general and commander in Serbia dated the 28 of February 1943 concerning reprisals by killing. Was this regulation known to you?
A. This instruction was known to me.
Q. Was this instruction given by the Armed Forces Commander Southeast?
A. No. May I point to my previous testimony. According to which the Armed Forces Commander who later became Commander in Chief Southeast did not order details concerning reprisal measures because he maintained the point of view that only the military commanders in the area concerned could survey the whole picture and could therefore apply the necessary measures.
Q. Now, we will turn to Document Book XI of the Prosecution, According to the survey which we submitted initially, the following exhibits only became known to you during this trial. These are the numbers 264, 265, 266, 276, 268, 269, 270, 272, 273, 275, 276, 278, 279 and 280.
A. Yes, that is quite correct.
Q. Well, then, let's turn to Exhibit 271. It is contained on page 26 of the German text and page 34 of the English text. In this exhibit we find excerpts of a number of reports. Did you know those reports?
A. I did not know these reports with the exception of the report of the 17th of April because at the beginning of April I was absent on leave.
Q. You mean the report which is contained on page 10 of the original -- that is page 6 of the document, page 10 of the original?
A. Yes, that is correct. That is the one I mean. It is dated the 17th of April.