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.
Q And is this a basic order?
A Yes.
Q Witness, at the beginning of this trial you received an indictment in which the charges against you were set down; amongst these charges was there a reference to these orders?
A The indictment asserts that the Chief of Staff Army Group E issued on the 10 of August, or about the 10th of August 1943, and carried out an order according too etc., and then there are passages from this order quoted.
Q Now, did you issue this order?
A I neither issued nor carried out this order.
Q And could you have issued and carried out this order?
A No.
Q I now submit to you the original, -- are your initials on the original?
A No, I don't find my initials on it.
Q Now, witness, at the beginning of the trial you said,-at the beginning of your examination, and it can also be seen in the daily reports where your initial was; that this order must have been initialed by you if you had anything to do with it?
A Yes, that was the custom, it was usual.
Q But in any case you must have signed it if, as the prosecution asserts, you issued this order and carried it out?
A I repeat that I never issued or carried out this order.
Q I now come to Figure I of this order, It states: "Treatment of Brisoners of Deserters. Execution of Reprisal Measures, and executions are not matters of administration, but rather measures of combat and of combat preparation and of security." What was meant by that?
A This introduction was supposed to mean at that time that the territories mentioned here were to be left in the hands of the responsible commanders and not in the hands of the police, and of administrative officers.
Q One can also see from the order that captured insurgents are no longer simply to he shot, but are to he treated as prisoners; did this originate in a directive of the OKW?
A Yes, it was based on the OKW order which was mentioned a few minutes ago the order of the 7th of July.
Q The order?
A Yes, Keitel's order.
Q The order to which Himmler made the supplement?
A Yes, Exhibit 302.
Q And then how did you take this new regulation at that time?
A Well, we were very pleased about it, because at least in one small area a request frequently made by the Commander-in-Chief Southeast was now fulfilled.
Q And for what reasons had you been fighting up to then for this regulations?
A I repeat for reasons of expediency, not for any kind of a legal attitude.
Q And not because now the prisoners were from then onward to be regarded as members of a regular Army?
A No, of the fact that all kinds of the bands were illegal there was no do but whatsoever.
Q Not even after this Order?
A No.
Q And do you perhaps assume from this that the insurgents were still to be called bandits?
A That is an outward symptom.
Q In Figure 4 of this Order of the Commander-in-ChiefSoutheast from the 10th of August 1943, there is mention of an evacuation of particularly important areas; why was it thought at that time that an evacuation was necessary?
A For purely military reasons, because under Figure 4 it states "In the territories especially valuable for the conduct of battle," and then these areas are described in the couse of this Paragraph 4, and then stretches of the coast are mentioned, which are especially suitable for landings, pass heights and pass lands, strips of terrain, along especially entangled railway lines.
Q And was this evacuation carried out?
A No, evacuations were only carried out to a very small extent, and in those cases where they were necessary from a military point of view.
Q And were these evacuations planned on a larger scale by the OKW?
A Hitler wanted at the time to evacuate the whole Dalmation coast.
Q. Were Hitler's intentions carried out?
A. No, as far as I know from my work, there were isolated local evacuations, perhaps on a few islands, but a large scale evacuation was never experienced by me.
Q. And then it seems on the whole as if this order again didn't bring anything new, anything important?
A. No, this order is a summary of measures which had already previously been ordered, and the aim of this summary is, I would like to say a summary up of orders as I have already mentioned in regard to Figure.
Q. Now, at the end of Figure 3, the last paragraph of Figure 3, the following is stated: "Reprisal measures are to be ordered by the divisional commanders and or in dependent regimantal commander in order to avoid encroachments of subordinate offices, and individual soldiers and to prevent a wrong and unjust treatment of the population." Why was that expressly stressed, the fact that the reprisal measures are to be ordered by the divisional commanders?
A. I wish to point to the other order of Generaloberst Loehr which was mentioned today about the preparation for a possible enemy landing; at that time in that order from July the authority for reprisal measures was also given to lower commanders for the reason I have already stated when discussing the order.
Q. Now, in this paragraph of Figure 3, there is also mention of the fact that encroachments of subordinate offices and individual soldiers is to be avoided. Was there a special reason for this?
A. No, I don't think so, but it was always a good thing to put a sentence like this, and to point out to the troops that they had to take care of this matter. In the orders one wanted to do everything what was possible.
Q. And now did this not remain pure theory, wasn't it so that the population had to suffer injustice.
A. That is a question about which I thought quite a lot of that time, and at that time I arrived at the idea that a modern war is a total war, and that the whole population of the belligerent states are concerned with this, and this was true for the active fighting as well as for the passive suffering. In a normal way the population of a belligerent country through work and production of all kinds is incorporated into the war machine, and it cannot escape the other side; the passive side; and if a population, such as in the Southeast there although it wasn't necessary, and although in my opinion that were obliged to remain calm, took an active part then it is bound to encounter passive suffering, a modern war taken its course according to its own laws, and I think that the individual cannot achieve very much in this inevitable course of events, but nevertheless each commander in an occupied territory conscious of his responsibility will do his best to prevent unnecessary suffering, and for this reason, at any rate, it seemed to me correct and necessary always to point out again these sentences, these passages which were the reason for your question.
Q. Now, please take Exhibit 309, page 101 of the German Document Book and page 121 of the English Document book -- page 121. These are again daily reports; did you know these reports?
A. Yes, I probably knew the reports, but also in the complete form as they were sent out at the time.
Q. In Exhibit 310, page 134 in the German Document Book, page 160 in the English Document book; this is a new regulation of the command in the Southeast area, dated 15 August 1943. This is the announcement of a new organization; what was the reason and what was the essential content of this new organization?
A. The essential content was the incorporation of the military commander Southeast with the subordinate offices, as was set down in the plan which used to hang up here, ( indicating wall of courtroom), but in my opinion with also a few necessary alterations. The reasons were that the commander in Chief Southeast had to be relieved of some of the work, because it was no longer possible for this enormous area, and the numerous offices which were directly subordinate to manage and to be supervised.
Therefore, the new organization was created, which made the Commander in Chief Southeast one rank higher and incorporated underneath as new staffs, the commander in chief of the 2nd Panzer Army, and Army Group E, which was already in existence.
Q Did you think this new organization was expedient?
A It had its advantages also its disadvantages. It relieved the Commander in Chief Southeast of some of his work, mainly by the fact that the executive power and the territorial authority were now taken from him, but the new organization also complicated conditions by the fact that the two channels or even more channels of the area become even more predominant fore.
Q I think the last answer, the two channels, was not fully understandable; can you explain it a little more so that it will be easier to interpret.
A By that I meant that the numerous commands and communication conditions which were beside each other. The dualism of the Commander in Chief Southeast and Commander Southeast ran parallel to each other and in the further course the dualism of organizations which was very difficult to see through in various spheres of command in this Southeastern area.
Q Witness, what was the importance of this organization of command for your own personal state; did you now have any prospect of getting out of your post as Commander in Chief?
AAt that time I was almost successful, but the decision then was different and at that time I was then told that from about the end of the year I would receive a different assignment.
Q Witness, now we continue with document book 13 of the prosecution. I submit to you first of all the exhibits which you saw for the first time in this trial. These are all documents which you did not know at that time when you were chief of staff. These are exhibits 318, 319, 324, 325, 326, 328, 329, 330, 334, 335 and 336; is that correct?
A Yes, that is correct.
Q Please come to exhibit 317, this is on page 18 of the German and on page 27 of the English document book. This is the order from the Wehrmacht Operational Staff from Keitel, dated 9 September, Court No. V, Case No. 7.1943, which deals with the treatment of Italian soldiers in the sphere of the command of the Southeast after the Italian capitulation.
First of all a few general questions with regard to the Italian detection. How was the situation judged in the staff of the Commander in Chief Southeast after the overthrow of Mussolini?
A One regarded Mussolini's overthrow as the first step toward Italy leaving the alliance.
Q And what was the reason for this judgment?
A This opinion was founded on the observations and experiences which were made with Italian offices in the Southeastern area?
Q And how was that explained?
A In various ways. In general by the fact that we had the impression that the Higher Italian Command Offices in the Southeast no longer followed in general Mussolini's orders.
Q Now are you thinking of special instances in this case?
A This was especially plain in the field of the band combatting. This was shown in the non complying with our wishes regarding exchange of information in all possible spheres and it was mainly shown in the internal resistance which one always felt when matters of subordination and cooperation of the German and Italian troops were discussed.
Q And did the combating of the bands play an important part in the area occupied by the Italians?
A I have just said that also there the orders of the "Commando Supreme" of the Italians were often not followed by the Italian officers.
Q Were you afraid the Italians would go over to the bands?
A When Mussolini was overthrown we did not count on that at that time, but we certainly counted on the Italians leaving the alliance. On the other side, we knew that while the greatest crisis of the whole Southeastern area and the whole Southeastern period was to be expected, because we had to assume, according to numerous reports which had been issued, that if perhaps the Italians fell out at the same time an Allied landing would take place and that would have been a very complicated situation indeed.
Q Now, by reason of your observations were you able to make proposals to the O.K.W.?
A No, not at that time. Previously numerous letters were written about the attitude of the Italian offices and also about the attitude of individual Italian commanders.
Q And what knowledge had you at that time about the attitude later on from the judgment of the situation which was held by the O.K.W.?
A Of course we could not see this on the whole, therefore we could not make any proposals ourselves, but we had the impression that the O.K.A. could not see or did not want to see the conditions at that time as we saw them,
Q Did you yourself ever speak with members of the O.K.W. about these problems.
A Yes, that was the second personal oral report which I made during the war to Field Marshal Keitel.
Q And what was the result of this report?
A Exactly the same completely negative result as in the case of the first report.
Q And now did the O.K.W. change its attitude as time went on?
A Yes, gradually their eyes were opened.
Q And what was ordered in case the Italians should detect?
A About the middle of August an order was issued under the slogan "Axis", according to which if the Italians left the alliance, the Italian forces in the Southeast were to be disarmed immediately.
Q And was it also intended that the Italians who wanted to fight on should be kept on the German side?
A The order dated about the middle of August said nothing about this question, but only told about the preparations for disarming in case the Italians left the alliance. This disarming should if possible be achieved in the most friendly and peaceful means by negotiations with the Italian officers, but if necessary the disarming should also be forced.
