Q. Yes, it is dated the 17th of April and addressed to the Commander in Chief Southeast. On the first page of Exhibit 271 we find a communication from the Commanding General and Commander in Serbia dated the 2nd of April 1943 and addressed to Administrative Subarea Headquarters 610, and I am submitting to you a passage which is contained under figure "3".
"In agreement with the 24th Bulgarian Division, the proposed measures are to be examined and the intention to carry them out is to be reported."
I want to put this question to you. What was the attitude of the Bulgarians concerning reprisal measures for such band attacks?
A. The attitude of the Bulgarians was comparatively strong. In the Serbian area -- that is, in an area of our supremacy -- they had to succumb to the general directives and the orders of the Commanding General and Commander in Serbia were binding for them. Regarding the area of their own supremacy - that is, the Bulgaria proper -- they have occasionally taken much more stringent measures.
Q. Are retaliation or reprisal measures on the part of the Bulgarians known to you which were carried out in the area occupied by the Bulgarians themselves?
A. I recollect one case which happened in Thrace; that is the area which came under the Bulgarian supremacy.
MR. FENSTERMACHER: Your Honors, I think we are not interested in what the Bulgarians stated in their occupation zone. That has not been alleged as a crime by the defendants.
PRESIDING JUDGE BURKE: Upon what do you base your objection?
MR. FENSTERMACHER: On the ground it is irrelevant and immaterial.
PRESIDING JUDGE BURKE: The objection will be overruled.
Q. Will you please continue then?
A. The area concerned is Th race which was under Bulgarian supremacy. Concerning that area I learned once that near the town of Drama heavy acts of sabotage had occurred and the Bulgarians had taken acts one might almost call Balkanese cruelty.
Q. Was the attitude of the Bulgarians made known to you by Bulgarian officers possibly?
A. There was a Bulgarian liaison staff attached to our staff and I have frequently talked to these people. On the whole it was their conception that we were too mild.
Q. Was that only presented in a general manner or did that liaison officer enlarge on his opinion?
A. Occasionally he made rather drastic suggestions or gave examples how these measures could be carried out and these examples and suggestions came close to torture but in all these cases one could only tell him that those were methods which did not correspond with the attitude of a German soldier.
Q. Now, we will deal with Exhibit 274. It is contained on page 40 of the German text and page 48 of the English document book. These again are daily reports addressed to the Armed Forces Commander Southeast. Did you know these reports?
A. It is probable that I knew the report of the 16th of May.
Q. That is the report on the first page?
A. Yes.
Q. And what about the other reports?
A. The answer to the administrative Subarea Headquarters was not made known to me.
Q. Now, we will deal with Exhibit 277 contained on page 46 of the German and 57 of the English text. This contains an instructional pamphlet for the German soldiers serving in Montenegro. I believe you have already mentioned this pamphlet yesterday in a different context and there is some talk about the so-called "Whites," the Cetniks, and the so-called "Greenes," the autonomists, and the situation in Montenegro is described. This is for the information of the troops serving in Montenegro. Does this pamphlet describe the situation correctly?
A. Yes, I believe it does and I believe it is typical for the rather complex conditions in Montenegro. It gives a brief excerpt from the total picture of the Southeastern area. Furthermore, this pamphlet shows that German soldiers who entered a new area was informed concerning prevailing conditions and, as can be seen from individual passages in this pamphlet, he was repeatedly instructed to take into consideration the rather unique conditions. For instance, it reads here:
"The religious customs of the Moslems have to be considered under all circumstances" -- and then there is some hint concerning the attitude of Europeans in Mohameham countries and this only gives an example for the total altitude which prevailed.
Q. Now, we will turn to Exhibit 281 on page 54 of the German and 69 of the English text. That is an OKW order of the 20th of June concerning combating of bands. What did this order intend to achieve? Mas that order issued again?
A. I believe it is not an order concerning combating of bands. It is an order concerning designation of bands.
Q. That is correct.
A. This order shows clearly that the OKW concerning its attitude of band warfare and of the illegality of the opponents maintained its attitude because in this order it is prohibited that German military concepts are applied to these bands just in order not to give the troops the wrong picture about these bands.
Q. What do you mean -- give them the wrong impression and the wrong conception?
A. I mean that wrong conception in this sense would have been, for instance, if those band units had been designated in regular divisions or batallions or units of that kind. Therefore, it was ordered here that in future only those expressions were allowed: small bands, mediumsized bands and large bands. The OKW intended to emphasize its opinion that these units were definitely illegal.
Q. And now please turn to Exhibit 282. You find it on page 57 of the German and page 71 of the English text. These again are a number of reports. Did you know them.
A. It is probable that I knew them.
Q. Turn to the report of the Commanding General and Commander in Serbia addressed to the Commander in Chief Southeast. This is the second report in this exhibit and it is dated the 29th of June. It reads here under I:
"First Royal Bulgarian Occupation Corps, South of Krusevac, SSW Station attacked by medium sized heavily armed band. Amongst them were 15 attackers in German uniform and German speaking; 14 SSW men dead. Quarters with corpses burned down."
To begin with, what does the abbreviation "SSW men" mean?
A. That meant Serbian State Guard. This was a legal unit organized by the occupation forces and they were a kind of police.
Q. The incident reported here -- that is, the fact that band members appeared in German uniform -- was this an unusual incident?
A. The appearance of band members in German uniform was quite frequent.
Here, however, it is apparently a deliberate deception because the report shows also that German was spoken and I assume that they called out in the German language, "Don't shoot," or something like that. This was done, I suppose, in order to attack and surprise this station.
Q. Did you know the reports which are contained in Exhibit 283? That is the next exhibit?
A. I believe that I did know the report of the 18th of June to the Armed Forces Commander Southeast.
Q. And now we will deal with Exhibit 28 on page 59 of the German and 76 of the English text. This is an activity report of the I-a Branch from the 1st to the 31st of January 1943, diressed to the Commander in Chief Southeast. I believe it has to read "1943."
A. Yes, 1943. That is correct.
Q. It says here under number "2": "New Regulations in the Southeast Area." Can one assume from that that when Army Group E was created the Second Army was eliminated and that the Armed Forces Southeast was changed to the Commander in Chief Southeast. Is this what the new regulation of command meant?
A. Yes, that is the new regulation of command which I indicated previously.
Q. And after this regulation of command, as described on the same page, we find a reproduction from page 7 of the document: "Reprisal Measures Against the Population of Teslic." That is on the next page in the English text, page 77, and then in the last paragraph of the document we find a passage: "Reprisal Measures against Sabotage Acts." Both passages mention OKW orders.
What kind of OKW orders are they?
A. These two notes are examples for the fact that the OKW, as I mentioned previously, was always inclined to interfere in details, always attempted to give detailed orders; they wanted to hasten things up and they thus expressed their suspicions concerning the handling of matters by the Commander in Chief Southeast.
Q. Then you mean that the OKW did not only issue basic instructions concerning the dealing with the bands but even concerning individual attacks in individual areas, interfered and gave orders regarding the reprisal measures to be taken?
A. Yes, that happened frequently and, as I mentioned before; the reason for this request of a detailed report was based on the desire to be able to interfere occasionally.
Q. Did the OKW also interfere in this rather detailed manner if they had been able to rely on the fact that the Armed Forces Commander Southeast would on his own initiative take stringent enough measures in compliance with the wishes of the OKW?
A. Then such orders would not have come in because in that case the OKW would have been under the impression that Hitler's wishes are being acted upon.
Q. Witness, we will how pass on to Document Book XII of the prosecution. Here again first of all I will read to you the numbers of the exhibits which, according to my survey, you only got to know in the course of this trial. These are the following exhibits: 285, 286, 287, 288, 292, 294, 296, 298, 299, 300, 303, 304, 307, 308.
A. That is correct.
A That is correct.
Q In Exhibit 289, contained on Page 12 of the German and Page 19 of the English text, we again find Daily Reports to the OKW by the Commander of the Southeast. Did you know these reports?
A It's likely that I knew these reports.
Q One report is contained there which is dated the 16th of June 1943, and this report is contained on Page 26 of the original, and Page 18 of the German text, and possibly Page 25 of the English text. It is a reproduction from Page 26 of the original. That's Page 25 of the English text, Daily Report of the 26th of June 1943. And amongst others it says here "During Italian mopping-up operations best of Levadia and 40 KM Northwest of Theben, two commanders of bands arrested; several bandit houses burned down." In accordance with whose order were those bandits' houses burned down?
A On the basis of the order of some Italian authority commander.
Q And in the next report of the 27th of June 1943, on the next page, there is some reporting under MontenegroAlbania, "In reprisal for shooting of Italian officer in the area of Berane-Portorice, the area 100 KM Northwest of Novi-Pazar, 150 Communist prisoners in all were shot dead." Who occupied Montenegro-Albania?
A In June, 1943 it was occupied by the Italians.
Q And on whose order were those 150 Communist prisoners shot to death?
A I cannot say that with certainty, but in any case on the order of some Italian office.
Q And now, the next report of the 28th of June 1943, we find under the Daily Report for Greece: "During Italian mopping-up of the area Fast of Trikkala and South of Joannina two bandit Villages were destroyed, arms and ammunition and material were secured."
Does this toe concern a measure which was carried out on the basis of an order issued by an Italian Commander?
A Yes, certainly because it reads "During Italian mopping-up in such and such an area." And probably it was reported through our liaison officers by Italian Commanders.
Q Will you then turn to Exhibit 290 please? That is contained on Page 27 of the German and Page 33 of the English text. This is concerning suggestions of the Commander of the Fourth Brandenburg Regiment, Regimental Combat Post, and the subject is: "Proposals of the future employment for special purposes of the Fourth Brandenburg Regiment." This document is addressed to the Commander in Chief Southeast/Ia, through Commander of the German Troops is Croatia. And next to it we have a receipt stamp, or rather just the impression of the stamp, but it is not filled in. Did this document ever reach the Commander in Chief Southeast?
A I don't believe so. The stamp is one of the Commanders of German Troops in Croatia. I found that out by comparing it with other documents.
Q And then have a look at the distribution list on the last page of the document.
A Yes, according to the distribution list that would have to have been the second copy, and I am sure it is the second copy. The first copy was to go to the Commander in Chief Southeast. But in the address here it reads "Commander in Chief Southeast, through Commander of the German Troops in Croatia." One would think that the Commander of the German Troops in Croatia kept the document and did not pass it on, which was something that he was entitled to do. I cannot remember that document.
Q Now, concerning the suggestions and proposals which the Commander of the Fourth Brandenburg Regiment makes, were they made known to the Commander in Chief Southeast in any other way?
A Not in that form. I know that so-called Brandenburg-units..
Q Will you please repeat?
A The Brandenburg units were subordinates for tactical purposes, that is for the usual employment, to the command authorities in the area where they were committed. For the so-called special disposal committment, they received their orders from their own division staff. This division staff was immediately subordinate to the OKW and had its seat with or near the OKW.
Q In this suggestion of the Commander of the Fourth Brandenburg Regiment the intentions contained were to get hold of all of Tito's staff and to use former partisans for this purpose. What considerations do you think led him to this proposal?
A The so-called special disposal commitment had as its basic idea the idea to fight the bands with their own means and methods. And so one thought of the attempt to fight the bands by bands and to get hold of Tito's staff by bands too.
Q Did this proposed employment of the Fourth Brandenburg Regiment ever take place?
A Not to the best of my recollection. During my time, as far as I remember, no action against Tito's staff was carried out, at least it was not known to me.
Q Now, we will turn to Exhibit 291. It is contained on Page 32 of the German and Page 37 of the English text. It contains an order by the Commander in Chief Southeast concerning security and reprisal measures against the enemy population. Who issued that order?
A That order was issued by General Loehr, Chief Southeast.
Q That order starts with the following sentence: "In the event of enemy landing attacks we must reckon with the most far-reaching participation of hostile parts of the population on the side of the enemy." Will you briefly tell us what was the conception of the Commander in Chief Southeast regarding the fights in the event of enemy landings?
First of all, I would like you to tell us what facts were available so that one counted at all on enemy landing.
AAs I briefly touched upon yesterday, there were come very clear reports available concerning the intentions of the Allies in the Serbian area. And these reports said that they intended to land on the Peloponnesus or on the western coast of Greece, respectively. These reports were sent to us by OKW, and they also contained the corresponding directions. These directions said we had to prepare ourselves for that likelihood and to give the necessary orders in good time. Besides, from the general supervision of our own area, we knew that the attitude of the population in the event of a landing would doubtlessly be hostile to us. Far this fact I believe there are some reports in Document Book XXIV of the Prosecution by the commander of Southern Greece and concerning the period of June or July, 1943. These reports are significant because in my mind they give a very clear an correct picture of the situation at the time.
Q Now, how about your own forces which were available for the combating of a possible landing of the enemy?
A There were only very few forces of our own, and it was by no means certain that they would be adequate to counter such an attack.
Q Under Figure 4 of this order it says "As soon as such forces have arrived the setting up of an evacuation zone etc. is to be carried out."
A These forces never arrived because later on the landing did not take place either.
Q Now, the Balkan was only partly occupied by the Germans. The other parts were occupied by the Italians. Then, the Italian forces which were present in the Balkans would also have to be taken into consideration, wouldn't they?
A One knew that in that case too one could not expect very much of the Italian forces.
Q You have already said that in the event of a landing you would have to reckon with a hostile attitude of the population, and you would have to reckon with a lot of sabotage acts in the rear of the German Armies. Now, this order, contained in Exhibit 291, was that intended to take precautions against this danger?
A Yes, the whole order is of a preparatory nature. It instructs the subordinate units and troops concerning the existing danger and it is intended to kind of wake them up.
Q Was the meaning of this order to carry out even more stringent measures against sabotage acts than had been done up to now, to overcome the danger?
A No, the Division Commanders ware not intended to do this. Instead, as it reads in Figure l, the intention was to authorize commands and to give certain officers authorization in case of the landing, which authorization they did not have normally up to then.
Q. What were the authorities that, up to that time, were entitled to issue reprisal orders?
A Normally divisional commanders and independent regimental commanders.
Q And why did one deem it necessary in case of a landing to authorize commanders to issue reprisal measures who up to that time had not been authorized to do that?
A Taking into consideration the vastness of the area and the bad communications, which would have even been worse in a case of a landing and in case of sabotage acts, if a landing would have taken place, in that case it was quite impossible that, for instance, a battalion commander could wait until he received orders or consents from his divisional commander because it might have been quite impossible under those circumstances, and it might have taken days for such a decision to reach him. In such a critical situation as would have undoubtedly arisen had that action actually taken place, counter measures had to be taken immediately if they were to have any effect at all. And that was the basic reason for this part of the order.
Q We will now discuss the paragraph 1 on the first page, and this paragraph 1 reads as follows: "I give permission to and oblige all commanders to take most severe measures in case of obvious hostile attitude of the population on their consent and without having requested authorization from their superior officers. Measures taken are to be reported and will be covered by me. Commanders, however, who out of neglect or softness omit to take measures of reprisal will be held responsible." Now, Witness, don't you think that especially in the way it is put here that this phrase "measures will be backed up by me" -- did not that open the gate to arbitrary measures?
A No, I wouldn't say that because, first of all, it reads "In case of obvious hostile attitude" obvious hostile attitude, and then one has to go on reading the document because it says later under Figure 5 on the next page, "In all measures of reprisal the following has to be observed: Ruthless combat and reprisal should, as far as possible be m 4336 directed only against the hostile civilian population.
By a correct treatment of the friendly population the rest of the population towards the bands must be avoided." And further it says under this same figure on the next page, to the last but one paragraph of this passage: "The extent of an reprisal measures to be ordered clearly. Its execution must be supervised in order to prevent excesses of our own troops."
Q Witness, Under Figure 4 of this Exhibit there is some talk about an evacuation zone of 5 to 10 km on both sides of the main railroad lines, excluding larger towns. Why was it intended to create such a restricted zone?
A That was a measure of absolute military necessity. Besides, in actual fact, it was not carried out because, as I have already explained, there was no landing, and therefore the order became void and besides it was clearly ordered here in the last sentence of Figure 4, "Preparations are to be made; intentions arc to be reported." That is, the whole order just concerns a preparation.
Q And why did the commander in Chief Southeast consider such an evacuation necessary?
AAll our experiences of the preceding time had to lead us to the thought that in the case of a landing and simultaneous insurrections just the main railway lino would be the first installations which were likely to be attacked and sabotaged, and this could only be avoided or possibly be avoided by creating a wide zone on both sides of the railway line and evacuate it.
Q Now, to Exhibit 295. You find it on Page 43 of the German Document Book and Page 49 of the English text. This, again, is an enemy situation report and in this case it concerns the enemy situation in Slovania.
And in this enemy situation report again we find some surveys concerning the organization, weapons and leadership, etc. of certain bands.
Q Did you yourself read that order of the Commander of the German Troops in Croatia at that time?
A I cannot say that with certainty. It went to my staff for information, but most likely it was treated in the same manner as the bulk of such reports. That is, it was made available to the Ic, and the evaluation of this order would then be orally reported within the scope of the usual reports.
Q Then, we will come to Exhibit 297. This is on Page 66 of the German text and Page 75 of the English text. That is the so-called Directive 48, issued by the Fuehrer. That do you think was the reason for this Fuehrer directive which again deals with the command and defense of the Southeast area?
A The cause of this directive was the situation as described briefly. During this situation one had to count a large-scale invasion of the Southeast.
PRESIDING JUDGE BURKE: The Tribunal will take the usual recess at this time.
( A recess was taken.)
THE MARSHALL: Persons in the Courtroom will please find their seats.
The Tribunal is again in session.
PRESIDING JUDGE BURKE: Dr. Laternser.
DR. LATERNSER: Your Honor, I would like to draw the attention of the Court for a few minutes to a certain matter. In my capacity as defense counsel for Fieldmarshals list and Von Weichs, I would like to make a motion which, in my opinion, is of decisive importance for the judgment of the case.
I would therefore like to ask for the help of the Tribunal so that the result of the applications to be made can be taken in sufficient time before the case is concluded. As I have found out the French Army Officer General Leclerq, after the capture of Strassbourg -- that is, in a situation which is not comparable with the Balkan conditions -ordered the following on the 30th of November, 1944:
"For every French soldier killed in Strassbourg, five German hostages will be shot. The death sentence will also be meted out on every German soldier who is found in civilian clothes and to everyone who gives accommodation to enemy soldiers." End of quote.
As I have further found out, a few days late the Supreme Allied Command led by General Eisenhower, issued the following statement, and I quote:
"The Allied Expeditionary Forces in correspondence with the Geneva Convention of 1929, Article II of which states that all reprisal measures against prisoners-of-war are prohibited. On the other hand, by reason of military law, the taking of hostages from the civilian population is allowed as a guarantee for the fact that the inhabitants of the occupied area obey the orders of the military government. Such hostages can be brought to trial and sentenced to death.
Under certain circumstances, and especially in cases of civilian franctirours, without violating the Geneva Convention, punishments as threatened by General Leclerq are admissible but nevertheless not against prisoners-of-war." End of quote.
Your Honor, if the orders were given as I maintain, then it can be seen not only from the American Rules of Land Warfare that reprisal hostages can be killed but also I have then proved that the provisions of the American Rules of Land Warfare have also served as the basis for something which the prosecution seems to deny because they try to give a different meaning, that is, and quite wrongly to those provisions.
Then, if I succeed in proving this then I have proved a custom of war -- to wit, that reprisal hostages may be killed in the opinion of those powers who have issued Control Council Law No. 10.
Your Honor, in this way, I don't want to maintain at all that the orders mentioned are contrary to international law. On the contrary, they cannot be objected to according to international law; but if these orders cannot be objected to, then also those orders cannot be objected to which are charged against my client by the prosecution; and therefore I move that an attitude and an opinion in writing on these points from the following persons should be obtained as evidence for the defense: (1) from General Eisenhower, (2) from his Chief-of-Staff at that time, (3) from General Leclerq of the French Army, (4) from his Chiefof-Staff at that time.
And I also move that these orders will be produced here so that the Tribunal will have a clear picture of the customs of war because the customs of war as well as law are part of international law.
And now, quite briefly, another motion. I have further found out that the American General Patton on the day before the landing of an American Army in Sicily issued an order to his troops which is said to state, and I quote: "Civilians who have the stupidity to fight us we will kill".
If General Patton's order was set down in the way I say it is, then I maintain that this means that a summary treatment of franc tireurs was also in accordance with international law in the opinion of the American Army, and with regard to this order which as far as I know was issued in July, 1943, I would ask (1) the obtaining of a written opinion of General Patton's Chief-of-Staff at that time, (2) the submission of a complete copy of this order.
Your Honor, I have done and I would ask the Tribunal to take a speedy decision on this so that as I have already said, the result of it can still be of benifit to this trial.
PRESIDING JUDGE BURKE: It is the feeling of the Tribunal that the request made by Dr. Laternser should be reduced to writing concisely and submitted to the Tribunal for its further consideration and the response will thereafter be promptly given.
DR. LATERNSER: Thank you very much.
PRESIDING JUDGE BURKE: Have you received a copy of the finding made by the Tribunal yesterday with respect to the documents in the possession of the Secretary General?
DR. LATERNSER: Yes.
PRESIDING JUDGE BURKE: Very well.
DR. LATERNSER: Your Honor, but I haven't got them in German and I haven't been able to speak to my colleagues about this yet. I will do it this evening.
PRESIDING JUDGE BURKE: Very well.
You may proceed, Dr. Rauschenbach.
DIRECT EXAMINATION (Continued) BY DR. RAUSCHENBACH:
Q Witness, before the recess we came to exhibit 297 on page 66 of the German and page 75 of the English Document Book. You said that by this Fuehrer Directive 48 the conditions of command in case of a landing on the Balkans was set down. Now by this Furhrer Directive was the sphere of command of the Commander in Chief Southeast extended?
A Yes, insofar, I should like to say, as the 11th Italian Army was made tactically subordinate to the Commander in Chief Southeast, and within the 11th Italian Army German Headquarters' offices were set up with Italians and German troops and Italian troops were mixed up.
Q In this Fuehrer Directive it is announced that units of an operational army were to be brought into the Balkans by the OKW; did these units ever arrive?
A No, they never arrived.
Q And now what about the other orders of the Commander in Chief Southeast; were these usually extended by the Fuehrer Directive?
A No, this whole Fuehrer Directive 48 remained a theory. For instance, the subordination mentioned here of agents which didn't belong to the Wehrmacht was never carried out, and also for instance the regulation "Military Commander Greece," as it is stated here was never carried out. Thewhole Fuehrer Directive 48 didn't reach any kind of practical importance at all.
Q And then was this Fuehrer Directive changed later on?
A Fuehrer directives were never changed. They were only explained by implementations.
Q And now Exhibit 302, this is on the German page 83-A, and the English page 98-A; do you know that order which concerns the increase of coal mining, and it also concerns the employment of workers and also of prisononers-of-war.
Did you know this order at that time?
A Yes, the order became known, but without the addition of the Reichsfuehrer SS Himmler, which is contained here in this document.
Q You mean the addition at the end of the photostat where Himmler stated with regard to Point 4 that the young female prisoners who are capable of work are to be sent ot Germany through the agency of the Reichs Commissioner Sauckel?
A Yes.
Q And one question caused me to ask a question in Figure 4 of the Order, which came from the Chief of the OKW. It states: "All male prisoners from 16 to 55 years of age captured in guerrilla fighting in operational area, the army area, the Eastern commissariats, the Government General and the Balkans, will in the future be considered prisoners of war." And in this way did the OKW express from now onwards the bandits would be considered as a belligerent power?
A No, this was only a regulation for expediency. This can be seen from the text, "will be in the future considered prisoners of war," and also from the explanation for the order.
Q And now Exhibit 305, on page 90 of the German and page 106 of the English Document Book: this again contains reports; did you know about these?
A The reports to the Commander in Chief Southeast were probably known to me. The orders contained in this of the Commanding General of Serbia were not known to me.
Q And now under Exhibit 306, page 94 of the German, page 112 of the English Document Book. This is an order of the Commander-inChief Southeast dated 10 August 1943, for the treatment of prisoners and deserters in bandit fig ting, reprisal and evacuation measures; who issued this order?
A This order was issued by General Loehr, as the Commanderin-Chief Southeast, who was also commissioned with the command of the Army Group E.