Q Did the Commander in Chief issue supplements to this order?
A No factual supplements but, as the document shows, merely an indication concerning the interpretation of figure "4". It is merely a technical supplement intended to make it easier for the recipient to find the corresponding order in a previous order.
Q This order is concerned with the fact that all band members who surrendered in battle either in enemy uniform or in civilian clothing are in principle to be treated as prisoners of war and it is further said that it is within the discretion of the troop commander concerned to also treat such people as PW's who cannot be charged with any combat acts but who are to be regarded as band members. Witness, on the whole, this procedure is totally different from any procedure in the previous years. Now, more and more band members and band accomplices are to be treated as prisoners of war and not shot as was earlier the custom.
A Yes.
Q This again brings me to the question: is that the beginning of recognition of the bands as regular beligerants?
A No, now, too, it is valid what I said this morning. These were merely reasons of expediency and they were no legal reasons.
Q Witness, the first order which is contained in this exhibit 340 -- on the first page is an order by the High Command of the 69th Reserve Corps of the 23rd of September. Is this order known to you? It concerns the combating of bands, reprisals, and evacuation measures.
A No, this order was not known to me.
Q Did you know the order regarding the combating of bands, of reprisal evacuation measures of this same 69th Corps which is dated the 6th of October 1943? This is on page 5 of the original document?
A No, from this document I only knew the order by the OKW which you have just mentioned. This order was dated the 18th of August.
Q In the same exhibit further back -- to be exact, on page 13 of the original and on page 23 of the German document book and on pages 26 to 29 of the English text -- we have a compilation of excesses on the part of the Cossacks. To what unit did these Cossacks belong?
A They were part of the so-called 1st Cossack Division which was committed in the Southeast.
Q And as of what date was this Cossack Division committed in the Southeast?
AAs far as I recollect, as of Fall 1943.
Q Did you know this division on the basis of your own experiences?
A No.
Q How did you -- or rather, the Commander in Chief Southeast -- judge this Cossack Division.
A We had rejected it. We did not want it.
Q Why not?
A For a number of reasons. For one thing, we were anxious because of their reliability. Then we had misgivings concerning their morale and discipline.
Q With this last anxiety did you refer to misgivings which you can have if you read the list of excesses of the 20th of November?
A Yes, that's it, I remember exactly that we laid down our worries in a memorandum. The third misgiving which we had concerned the fact that we could not do with this Cossack Division, which was purely a cavalry division, in the mountain area where it was committed -- at least, we could only use it to a certain extent; but our rejection was not considered.
Q Who did not consider it?
A The OKW.
Q. Did the responsible Commander in Chief take steps against these excesses on the part of the Cossacks? After all there were quite a number of plunderings, rapes, the hanging of the German Vice Mayor, etc. All of this is contained in the list.
A.- It was not necessary for the Commander in Chief Southeast to invervene because the subordinate authorities had already intervened, and General von Galise, on the occasion of on oral discussion had stated that he would deal with these things immediately and would put it to rights with the 2nd Panzer Army and other subordinate commands.
Q.- Exhibit 350, on page 61 of the German Document Book, and page 84 of the English Document Book, is one of those documents which you knew at the time?
A.- Yes, it is.
Q.- Did you know all the individual reports? There is, for instance, a report on the first page of this Exhibit 350 of the 2nd Croatian Corps, "as reprisal measures for the attacks on the railroad base SE of Kasanica, one village was burned down and one hundred bandits were shot to death."
A.- I would assume that these reports were known to me, with the exception of those which fell, in the period of my absence. No, I bed your pardon.
Q.- I'm talking about Exhibit 350. There are Daily Reports from the 2nd Panzer Army and they are dated the 14th of October 1943.
A.- As these are reports of the 2nd Panzer Army to the Commander in Chief Southeast, it is very probable that I knew them. However, Daily Reports by the Corps to the Panzer Army were, of course, not known to me.
Q.- And are these reports complete the way these are reproduced here?
A.- No, these reports too are very incomplete. They contain only very brief excerpts.
Q.- No, we will turn to Exhibit 351. It is on Page 65 of the German book and page 89 of the English text. This is an accompanying letter when passing on the draft of basic order regarding the command authority in the Southeast area, and this exhibit also contains the order itself. What is concerned in this draft of the basic order regarding the command authority in the Southeast area?
A.- This is a draft; it is not in itself the final formulation here. It is a draft of the new regulation of the command authority in the Southeast area, as it was to be valid as of the 26th of August for the Southeast area.
Q.- Was this draft ever made into a proper order?
A.- Yes, that was done.
Q.- Did the final version contain any amendments compared with the draft?
A.- I would not suppose that the final version shows any material amendments because it had been ordered essentially from the OKN, and it was laid down accordingly in this order.
Q.- Did you find the order itself amongst the documents of the Prosecution?
A.- I did not see the final version.
Q.- Who signed the accompanying letter which enclosed the draft to the agencies mentioned in the distribution?
A.- The cover letter, which passed on the draft to various departments of my staff, was, of course, signed by me.
Q.- What was the reason for the new regulation of the command authority in the Southeast?
A.- As I have stated, this morning the regulation of command which existed up until then had become too difficult for this one staff; therefore, the Commander in Chief Southeast was to rank higher, and the 2nd Panzer Army and Army Group E were inserted.
Besides through the introduction of a Military Commander Southeast, the Commander in Chief Southeast was to be relieved of all tasks of executive power, of all territorial tasks, of all administrative tasks, and he was only to con centrate on the operational problems of the area.
Q.- Was the situation this: These two offices, Commander in Chief Southeast and Military Commander Southeast, existed next to each other and were on an equal level, or was there a relation of subordination?
A.- They were parallel. They were on the same level, but there were two exceptions. The Military Commander Southeast was simultaneously Commander of Serbia. He combined these two offices in his person. And as Commander of Serbia he was subordinate to the Commander in Chief Southeast, in questions concerning the security of the country -- that is, Serbia.
Q.- And who was the Military Commander Southeast subordinate to for all other matters?
A.- For all other matters he was immediately subordinate to the Chief of the OKW.
Q.- You've just mentioned that the Military Commander-Southeast was subordinate to the Commander-in-Chief Southeast regarding territorial questions.
A.- I shall try to explain it. If, for instance, there it was necessary to combat a band or a group of bands in on particular area of Serbia, then that would be a task which fell within the scope of the securing of a country. The Military Commander was, concerning this particular problem, subordinate to the Commander in Chief Southeast, who gave him the necessary troops for this purpose. However, if, for instance, the question of harvesting in the country of Serbia was concerned, or shall we say the securing of the harvest, then that would be a task of the Military Commander Southeast in his capacity as a territorial com mander, quite independent of the Commander in Chief Southeast.
Q.- And how about police tasks? I am not talking about the military combatting of bands for the securing of the country. I am talking about police tasks.
A.- Police tasks again did not touch the Commander in Chief Southeast, but here again the situation is doubly complicated. The High SS and Police Leader is only subordinate to the Military Commander Southcast regarding his own person, and he received directives concerning his scope of work directly from Himmler. I did not want to give this example, as it makes things even more complicated.
Q.- Now regarding what you said previously. The Military Commander Southeast was subordinate to the Commander in Chief Southeast regarding the securing of the country. In what parts of the order or rather in the draft was this established?
A.- That is laid down in Figure 4 of the draft of the order. That is on the second page of the draft. It says there after Figure 3 where the main tasks of the Commander in Chief are described -
Q.- What were the main tasks?
A.- They were the defense of the Southeast area against Anglo-American landing attempts from the sea, from the air. I shall repeat. After this main task was laid down, it says the following, under Figure 4. "In addition the Commander in Chief Southeast is responsible for the security in the interior of the country, as well as for the combatting of bands and for counter intelligence measures against sabotage. In all questions regarding the security of the country, a) the Military Commander Southeast, in his capacity as Military Commander Serbia, is directly subordinate to the Commander in Chief Southeast."
Q.- This passage from which you just quoted contains six figures in this document book. The sixth figure concerns the Air forces, and we are not interested in that, but then it goes on: "Territorial channels of command," And we find there, under Figure 1: "The Military Commander Southeast exercises the territorial authority and the executive power in the Southeast area.
In this respect ho is subordinate to the Chief of the Wehrmacht High Command." Is that passage the one you meant at the beginning, which said that the Military Commander Southeast was immediately subordinate to the OKW?
A.- Yes, that is what I meant.
Q And what did you understand under territorial authority and executive power when the draft came out and later the order, according to which, the Military Commander Southeast exercises independence of the OKW?
A These two concepts which are not particularly simple are actually laid down. I cannot state them here by memory in a manner in which I can be responsible for their correctness. Even at the time I would have had to look at the directives in order to answer this question, so that I could gain a clear picture out of the chaos of all these channels of command. Essentially I would say it was thus: Executive power meant the authority for issuing emergency orders, the authority of eliminating laws and replacing them by corresponding decrees, the authority to intervene in all administrative matters of the country. Executive power findsits limitation, as it was expressed, in the will and wish of the Fuehrer. Then, there was a clause regarding the Reich authorities of the Party and the Reich Ministries. In my opinion this is only of theoretical significance. It said there, "The Reich authorities in the event that they issued orders or for such an area had to channel these orders through the man who held executive power," However, that never actually happened. At least it did not happen for the period when the Commander in Chief Southeast held executive power, which is the period immediately prior to this now regulation. And I believe it never happened afterwards either. At least I never experienced it that a Reich agency endeavored to channel any orders or directives via the Commander in Chief Southeast. They just ordered ad lib Himmler through his police channels, Goering through the Four-year plan and other Reich agencies in a similar manner.
Q Witness, under Figure 2 concerning the territorial regulation of command we have: "The Commander in Chief Southeast is issuing directives in the Military Command Southeast, as far as the affairs of troop leadership are concerned. He is authorized to intervene as far as it is necessary in essential questions in the interest of the tasks". Now, matters get even more complicated.
The Commander in Chief Southeast, concerning territorial authorities which before where only the authority of the Military Commander Southeast, now tine occasion and opportunity to intervene. When did that happen?
A He had the right to direct, but that right was restricted. It was restricted to the even that it concerned interests of the troops and, as we further read here, it was restricted to essential questions.
Q Can you enlarge on that?
A Yes, I'll try to clarify that with an example I have on hand. I would like to connect it up with the examples which I have mentioned previously. If, for instance, the vital railway line was threatened in a certain area through action of bands, then it was possible for the Commander in Chief Southeast on the basis of this Paragraph 2 tell the Military Commander Southeast, "These bands there in that particular spot have to be combatted as fast as possible because I, as Commander in Chief Southeast, for reasons of troop leadership have a special interest in the smooth running of this railway....
Q You're just giving an example now, Witness, because you yourself were never in that position?
A Yes, I am, of course, just giving an example. The example in which I said I, as Commander in Chief Southeast -- well fortunately I was not Commander in Chief.
Q How about reprisal measures?
A I would like to conclude this example which I started. For instance, let us remain with the example cf harvesting. If, for instance, the railway communication was interrupted for ten days or more, through the activity of bands, then the Commander in Chief Southeast would have been authorized and justified to tell the Military Commander Southeast, "You as Military Commander Southeast have for ten days to secure from the stocks of your country the food supply for the troops in Greece. Because the supply for these troops as a consequence of the destruction of time railway line cannot function properly."
Therefore, he can give him a directive in an administrative sphere in the interest of the troop leadership because this would be an essential question, that is, the food of the troops. But to connect up with the question which you put to me, the Commander in Chief Southeast could say and did say to the Military Commander Southeast, "Bands of Mihajlovic," let us say, "in the area of Lebanj have to be fought with priority because otherwise, "this is only an example, "we fear that the bands in this area might link up with bands which are approaching from Montenegro." That is a task concerning the security of the country which the Commander in Chief Southeast does not give to the Military Commander Southeast, but instead to the Military Commander Serbia, although in both cases he would be represented in the person of Felber. But the Commander in Chief Southeast would under no circumstances tell Felber, as Military Commander Southeast or as Military Commander for Serbia, and he did never do that, "You have to take certain reprisal measures for a sabotage act which happened yesterday," because that could be done by Felber, as Military Commander Southeast and simultaneously as Military Commander for Serbia, on his own initiative and on his own authority because he held executive powers and he also held territorial authority and he did it too. I must admit that these conditions are extremely difficult. We used to say at the time that "everything runs on several tracks in the Southeast; too bad that only the railway just runs on one track."
Q Could the Commander in Chief Southeast prevent the Military Commander South East from carrying out reprisal measures?
A Not in my opinion because on principle they were ordered by Hitler.
Q What about the individual incidents?
A In an individual case it would have been extremely difficult to prove. If one assumes that this question has to be fought to the bitter end bureaucratically that the Commander in Chief Southeast had an interest of troop leadership and in essential questions in such a vast area.
Q Witness, there is one exception or one apparent exception, and that is the reprisal order of the 22nd of December 1943, which we shall deal with later. We will omit it for the moment because it only makes matters even more complicated. Instead we will turn to Exhibit 359. It is on Page 94 of the German text and on Page 123 of the English Document Book. It is the Operational Order for the so-called Operation "Panther."
This document is not amongst those which you knew according to your statement at the beginning of the examination, but let us find out what you knew altogether concerning the operation Panther.
A. The initial phases of this operation I did not personally experience because from the 19th of November until the 10th or 11th of December I was not present.
Q. Well then, turn to Document Book XV of the Prosecution. Here again you knew only so few documents at the time when you were in the Southeast that I think I will only submit to you those which you knew. Is it correct that you knew 369 and 370? 369 is on page 45 of the German and 44 of the English text, and 370 is on page 61 of the English text.
A. I did not know 369 and I didn't know 370, not the documents.
Q. Not the documents? But you knew the incidents and the events. How come that at the time you did not get to know any of the documents contained in this book?
A. We are dealing here with reports and correspondence between divisions and corps or at the most between corps and the army which never reached the staff of the army group. It would be a rather strange picture if one imagined that the Supreme authority received all communications which were exchanged in the area. That would be the same as if the Prime Minister of a country receives on his desk all paper work that is ever undertaken in his country.
Q. Witness, concerning Exhibit 370 and 371, contained on page 89 to 96 of the German text and in the English book on page 61 to 72. These exhibits contain amongst others the reproduction of an order which finishes "Signed in draft by Loehr." This is the order of page 12 of the original; it is on page 97 of the German Document Book and it is page 11 of the actual document.
This document deals with questions--it is page 69 of the English Document Book.
It deals with levying of collective fines, It is a communication by the Commander-in-Chief Southeast to the Commanding General and Commander-in-Serbia, Can you by any chance remember this document?
A. No, I cannot remember this document and I do not believe that I have seen it before it was submitted to General Loehr.
Q. And why not?
A. Because this is a matter of administration of which, if I want to be quite frank, I understand just as little today as I did at the time. I do not believe that it would have been submitted to me. It was worked on by Dr. Parisius who was an administrative councillor as it states in the certification. He was senior military administrative councillor and it happened frequently that such matters were carried immediately to the Commanderin-Chief which procedure found my consent and therefore I have no recollection whatsoever of this matter and I do not believe that I have seen it previously at any time.
Q. And now we will deal with the exhibits of Document Book XVI of the prosecution. Here again, according to the survey at the beginning of your examination, you only know a small part of those documents at the time of your activities in the Balkans. They were only the Exhibits 379, 381 and 382. Is it correct that all other documents contained in this document book you only got to know during the course of this trial?
A. Yes, that is correct.
Q. First of all, we will turn to Exhibit 379. It is on page 98 of the German and 47 of the English text.
These are directives concerning reprisal measures counteracting the communist danger in the Southeast and issued by the Commander-in-Chief Southeast, dated the 22nd of December, 1943. They are the directives which we just discussed when we talked about the parallel position of the Commander-in-Chief Southeast and Military Commander Southeast. To begin with, one preliminary question, this document boars the signature "The Commander-in-Chief, Acting, (Signed) Loehr." Now come that Loehr deputized?
A. Field marshal von Weichs, during those days, around the 22nd of December, was on leave, and his deputy was General Loehr, and this is how the signature "Acting, Loehr" came about.
Q. I want to put one question again which I have put repeatedly in a different context. why did you not sign as deputy of the Commander-in-Chief?
A. I can only repeat that it was quite impossible because I was not his deputy and I could not have been his deputy. I had no command authority. I was considerably younger than the Commander of the subordinate agencies. Therefore, I could not, as deputy of Field marshal Weichs give orders to General Loehr or to General Rendulic, That was impossible.
Q. These directives regarding reprisal measures of the 22nd of December, 1943, start as follows: "The Fuehrer has commanded a unified counteraction against the communist danger in the Southeast with the political leadership of which Minister Neubacher has been charged. The reprisal, penal and revenge measures practiced up to now must in future take into account the new political objectives. The first principle has to be in case of attacks, acts of sabotage, etc.
to seize the perpetrator himself and to take reprisal measures only as a second course, if through reprisal measures the prevention of future attacks is to be expected."
Which was the new political objective which had to be taken into account regarding future actions?
A. One has to put the emphasis on the word "political" just the same as in the sentence which you just read. One has to put the emphasis of the word "political" again because actually it was nothing now and it was nothing new to us soldiers. The only thing that was now was that now finally after almost three years the political leadership of the German Reich understood what the Armed Forces Commander Southeast and the Commander-in-Chief Southeast had continuously said, i.e, next to the necessary military measures, political prerequisites have to be created which are necessary for the pacification of the area. If up till now we merely received the answer, "do not interfere with political affairs," that is none of your business as soldiers," now all of a sudden just like a sudden illumination from above there appeared the alledgedly completely new regulation in the shape of a diplomat. Really it was a very old idea but this new political idea was newly formulated to a certain extant. As far as I remember, the Minister Neubacher, which I do not want to mix up with Neuhaussen--he is Neubacher--he received the order to politically gather all anti-communist forces in the area in order to make them stronger. This is how we must understand this introductionary sentence, to which Neubacher attached particular importance, when drafting the decree.
PRESIDING JUDGE BURKE: At this point, we will take the afternoon recess.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
JUDGE BURKE: You may proceed.
DIRECT EXAMINATION (continued) BY DR. RAUSCHENBACH:
Q. Witness, before the recess I started asking you questions about Exhibit 379, on page 98 of the German, and on page 47 of the English. These are directives of the Commander in Chief Southeast of 22 December 1943, about reprisal measures; the sentence at the beginning of the directives has already been quoted according to which the first principle has to be in the cases of sabotage, attacks to seize the perpetrator himself, and then only to take reprisal measures as a second course. Was that something essentially new?
A. No, for us that wasn't essentially new. It isn't expressed here as something new.
Q. At the beginning of the examination in reply to general questions about the justification of reprisal measures you stated that in your opinion first of all the perpetrator should always be found, but there could quite easily be situations in which the perpetrator could not be caught, but where in order to prevent future attacks persons not involved in the offense had to be used for reprisal measures; and now if the OKW says here that in the first place the perpetrator himself has to be caught, did this also express your opinion?
A. But not that of the OKW.
Q. But that of the Commander in Chief Southeast?
A. Yes, the Commander in Chief Southeast.
Q. Quoting the first sentence in these directives - it seems that these directives go back to a Fuehrer order -- because it says, "The Fuehrer has commanded a unified counter action?"
A. Yes, insofar you are right.
Q. Witness, in the beginning of this document it says that the envoy Neubacher was entrusted with the political leadership; what sphere of activity was envisioned for Neubacher?
A. Neubacher had to cover politically the southeast area, but unfortunately he had no influence on Croatia. That was not under his competency.
Q. Witness, in which respect does this order of the 22 December contain anything essentially new?
A. Principally new was on the second page of the order under "B" , the paragraph according to which the orders which had been issued before with regard to reprisal quotas were to be rescinded. And then newly formulated is also the Paragraph "C" about the decisions, the decisive persons for reprisal measures. This had become necessary, because now the territorial channel was not the same as that of the troop channel, but these two were now parallel. Up to now the executive power and the territorial authority had been with the Commander in Chief Southeast, but now the territorial power and the executive power was in the hands of this newly created office, with Felber at the head, and were subordinate to him, and there had to be a qualification of the authorities for the cases which might arise.
Q. Witness, lets now deal with Paragraph "B"; "Reprisal quotas." Paragraph 1, "Reprisal quotas are not fixed. The orders previously decreed concerning them are to be rescinded. The extent of reprisal measures is to be established in advance in each individual case. " This seems to express what the Commander in Chief Southeast and the former Wehrmacht Commander Southeast in agreement with your opinion in contrast with the OKW had wanted from the very beginning?
A. I have already said the Commander in Chief Southeast had never ordered reprisal quotas; because he didn't think he was in a position so to survey the individual cases, that under individual circumstances and in individual areas he could set down such quotas.
In addition to this the Keitel order of the 16 of September 1941 became invalid.
Q. Did in the meantime the OKW, agree what one should abolish the considerable reprisal quotas?
A. Yes, otherwise we wouldn't have expressed it in this way here.
Q. Did you think it was possible that this change in the attitude of the OKW was based on the representations which had been made so often by the Commander in Chief that at least the OKW gave in?
A. Yes, I think that is very possible.
Q. And please look under "D", Figure 2, which is on page 50 of the English. On page 3 of the original under Figure 2, if such people as are guilty cannot be found, those persons must be resorted to who without being connected with the actual deed nevertheless are to be regarded as co-responsible. Such persons are co-responsible, first of all who profess communism." You will remember Keitel's order according to which hostages were to be taken from all classes of the population, and then to be used for reprisal measures; also those who were members of the Mihajlovic movement. The Mihajlovic followers arc not even mentioned here, only the communists?
A. This can be explained by the fact that Mihajlovic now acted more and more in line with his tendencies against communism.
Q.And is it also expressed under Figure 4, where it reads, under "C" - "Enemies of communism in case they themselves are not concerned with enemy treatment against those persons."
A. That is the same.
Q. And now it was already indicated on the occasion of the new organization of the Command authority in the Southeast in the previous Document Book, that this order of 22 December, this relation with the Commander in Chief Southeast, and Military Commander Southeast became more complicated. Both commanders had to deal with this order, that is, the combatting of the bands, and the reprisal measures.
Now before this order came into being did a discussion take place between the Commander in Chief Southeast and the Military Commander?
A. Several discussions took place between the Commander in Chief Southeast and the Military Commander Southeast and Envoy Neubacher.
Q. Now, please look at Exhibit 381 in the German Document Book 104, and in the English Document Book page 55; this is an order of the 2nd Panger Army dated 13 February 1944, concerning the evacuation of the islands and of the coast in the event of enemy landing; did you know this order at that time?
A. The order came to my staff for information, but I can't say with certainty that I remember it, but it is quite possible that I read it.
Q. Do you know anything about its carrying out?
A. Not that I remember, but I think that its execution, if it was carried out at all in this way, took place after I left the service.
Q. Under Figure 1, paragraph 2 of this order, the assembling of persons from various classes into construction labor companies is envisaged; what have you to say in regard to this?
A. This is quite in order, because this is Croatian State territory, and all these provisions were made in agreement with the Croatian authorities.
Q. Witness, we will now go to the documents in Document Book 17; here I will tell you first all the exhibit numbers of the documents which we have already stated you did not know before. These are Exhibit 412, 413, 414, 417, 420, 421, 422; is it correct that these documents which I have just mentioned were known to you for the first time in this trial?
A. Yes, that is right.
Q. And now your Exhibits 410, 411, 415, which I would like to mention here; Exhibit 410 is on page 37 of the German, and page 52 of the English, Exhibit 411 on page 43 of the German and 58 of the English and Exhibit 415 is on page 50 of the German and 64 of the English.