AFTERNOON SESSION The hearing reconvened at 1330 hours, October 17, 1947.
THE MARSHAL: The Tribunal is again in session.
PRESIDING JUDGE CARTER: You may proceed.
HERMANN FOERTSCH - Resumed CROSS-EXAMINATION (Continued) BY MR. FENSTERMACHER:
Q. General Foertsch, prior to the luncheon recess I had asked you whether you considered the orders of OKW to be necessary from a military standpoint for the carrying out of your tasks in the Southeast, and you asked me, as I recall, to be specific about the OKW orders. I would like to ask you now whether you considered the Keitel Order of 16th September 1941 to have been necessary from a military standpoint?
A. Hitler, by whose order this decree was issued, certainly considered that it was necessary from a military point of view.
Q. Did you in the Southeast, consider that you needed an order of that kind in order to carry out you tasks?
A. I can only give you my personal opinion in this respect.
Q. Can you not also give me the opinion of your Commander-in-Chief at that time---Field Marshal List?
A. No. After all, I did not discuss that question with him. When I returned the order had already been issued.
Q. Didn't you ask List what his opinions were about that order? It was, after all, a very basic one.
A. It is probable that the Field Marshal discussed the matter with me. I cannot recall having had such a discussion, however, with him.
Q. Well, what is your personal opinion then as to the military necessity for the Keitel Order?
A. My personal opinion of that time I can't give you precisely any more today.
Q. You don't remember whether you felt that that order was necessary in order to accomplish the pacification of the Southeast at that time?
A. I recall what my over-all opinion, at that time, of retaliation measures was, and as far as I can recall it from that time I have testified about it already in my direct examination.
Q. Can you tell me again what your opinion was regarding the military necessity for that order?
A. No, I did not speak about the military necessity of this order, but I expressed my opinion with regard to the question of the necessity for retaliation measures. If I can recall correctly, I expressed myself to the effect that in view of the behavior of the population of the occupied territories I considered retaliation measures to be very unpleasant, but that they were inevitable.
Q. Did you consider that order of the 16th of September 1941 to have been necessary from a military standpoint, General Foertsch.
A. From a military point of view it was necessary insofar as reprisals became military necessities.
Q. You would say, then, that that order was necessary from a military standpoint?
A. According to my personal judgment which, however, at that time was not of any importance, the formulation of this order --in this form-was not according to my taste.
Q. Which part of the order did you mean was not according to your taste?
A. In order to answer to this specific question I would have to read over this order once more. However, under oath I cannot precisely tell you any more today just what my opinion was about the subject at the time. After all I can only remember this whole thing very vaguely.
Q. Did the hostage quota meet with your approval--the quota that was mentioned in that order?
A. I also gave my opinion about that in my direct-examination.
Q. Can you do so again?
A. In essence, yes. I stated that the fixing of hostage ratios for certain areas and at certain times--please, I would like to correct myself completely. I stated that the fixing of retaliation ratios can be made with regard to certain areas and at certain periods, and in most areas it can be used as a warning to the population and be most effective for that purpose.
Q. There was no limitation either of area or if time in that order, was there, General Foertsch?
A. As far as I can recall, no time limitations were given in that order.
Q. And to that extent you disagreed and were displeased with the order?
A. No. If you are trying to find a contradiction here with regard to my opinion as expressed then, of course I do not agree with that.
Q. You approved did you, General Foertsch, of the hostage quotas' being fixed in that order except for the fact that you had misgivings about its non-limitation regarding time?
A. Well, I have already said that the fixing of certain ratios I considered above all as a possibly effective warning to the population. And I considered that appropriate. It could be appropriate at certain occasions.
Q. But there were no limitations either of time or area in that order, General Foertsch. And I would like to know whether you approved of that order or not.
A. No, after all, such a limitation could not be made by the OKW. It was stated here, if I can remember correctly, that order was to be applied generally. I don't know whether this is correct, but I believe it stated there that that order was to be applied generally. And the general application of that order in itself is a refutation of a certain fixing of a time limit.
Q. And that's what you disapproved of in the order, the fact that it was to be applied generally and was not limited?
A. In the general form you can't say that anybody could object to it. Of course, I could not object to this order.
Q. I'm not asking whether you could object, General Foertsch. I'm trying now simply to find out what your own ideas were, what you yourself thought and felt about this order.
A. I have testified about that already. I have testified about it in my direct examination. And I have just repeated it. I have stated my opinion to the reprisal measures and the fixing of certain ratios.
Q. When that order was passed on by Field Marshal List to the subordinate units did he specify that the order was to be limited to time and area the way you would have preferred to have had the order read originally?
A. From the Prosecution document which contains this document I assume that no additions of that kind were made and no time limitations were imposed. However, I don't know whether any supplements were made to that order. In any case I don't know anything about it.
Q. Did you state your misgivings about the order regarding its non-limitations to time and area to Field Marshal List when you returned to Southeast Headquarters at the 16th or 17th of September?
A. I don't know that any more.
Q. Did you inquire of Field Marshal List as to whether the order in the form in which it was passed on might not lead to excesses?
A. I don't know that any more either.
Q. Is that order of OKW, this one of the 16th of September 1941, an order to which you delivered no protest, General Foertsch?
AAgainst which I personally did not lodge any protest? Have I understood you correctly?
Q Yes, I would like to know whether you ever protested against this order to OKW through official channels?
A That was not within my field of work. I was not entitled to do that. I, on my own initiative, could not raise any objections of that sort.
Q But you protested to Buttlar, Brandenfels, Warlimont and others in OKW regarding other OKW orders. You told Warlimont that these orders were senseless and stupid. Weren't you able to tell Warlimont and Buttlar that this order was also senseless?
A On my repeated visits at the OKW, I have said to Warlimont, to Buttlar and I think also Jodl, clearly that in my opinion the most secure and best means in order to combat the uprising and in order to maintain public peace would be to station as many troops as possible in these areas and that with reprisal measures we could not have best means to serve that purpose.
Q You felt then that the way to secure pacification in the Southeast was as one of the affidavits introduced on your behalf states, by military operations rather than by reprisal measures?
A By all means, military operations were preferable.
Q And was it because you didn't have enough troops to carry out military operations that you took the least preferable way, the way of reprisal measures?
A No, in my direct examination I have also expressed my opinion on that subject. Do you want me to repeat it? Well, I shall repeat it once more in detail. My fundamental thought was at all times that I should have as many troops as possible at my disposal in order to enable me to crack down on the sources of unrest and in order to eliminate them, and in order to stifle any new attempts at uprisings, and by having as many troops as possible in these areas so that the population would be pacified and so that I would take the incentive away from the population to engage in any illegal actions that occur at all times.
However, in this connection, I also stated that even with the strongest occupation by military units, reprisal measures are inevitable in my opinion as long as the population, in spite of strong occupation forces, keeps carrying out illegal actions of these sorts. I tried to support my opinion by pointing out the order which had been proclaimed in Berlin which stated that in cases of that sort, besides the perpetrators of the deeds, fifty nazis would have to die and also by referring to the agreement between General Eisenhower and Badoglio. That was Article 44 in this agreement and I understood that particular paragraph in that agreement in the same sense.
Q We will go into those points a little later, General Foertsch. We don't want to get ahead of ourselves. The answer of Keitel to your request for more troops was to say that "We are tied up in Russia. We can't give you any more troops. You will have to pacify the Southeast area by draconic measures." That was Keitel's answer to you, wasn't it?
A Keitel's answer to me was not given in that form but in the main it was the attempt to convince me that the entire unrest in the Sougheast was solely caused by communist propaganda and instigation. He also tried to convince me that therefore military measures alone would not suffice but that also police measures and other measures were necessary. Then quite in general he pointed out the fact to me that as he expressed himself: "All orders have been issued already" and he added "You will find everything ready when you come back to your station."
Q General Foertsch, no troops at least not enough troops ever came to you from OKW and you therefore had to take the other way--the less preferable way of reprisal measures to pacify the Southeast. I take it then that you believe-
A No, that is not correct, in my opinion. The problem is not so simple at all. The troops were quite sufficient in order to occupy a peaceful country.
Q Well, it was not a peaceful country, General Foertsch, and you got, in fact, no troops and you therefore had to take another way.
A Yes, at the time we received the 342nd Division and later on we also had the 113th Division. However, it was pointed out to us that we would lose these troops again in a few weeks to another assignment. However, from this, we never drew the conclusion at any time during the time of my assignment in the Southeast that as a result of inadequate troop strength we should take especially severe measures in the question of reprisals. We always regretted that the population forced us to take reprisal measures.
Q Did you ever ask to have the Keitel order of 16 September repealed or withdrawn?
A That did not happen as far as I can recall and there were some good reason's for it.
Q Did you ever wish yourself either that the order had never been issued or that it would be withdrawn?
A I would have liked that very much indeed.
Q Would you have preferred to have it withdrawn because it was no longer necessary from a military standpoint?
A I would have like it but if this order had become superfluous if the population had not given us any further cause to apply such orders.
Q Did the situation ever become such that that order was not militarily necessary?
A In the various areas at various times the situation varied. Consequently, in the individual areas at various times different action was taken.
Q Would you say, generally speaking, that the order was necessary at all times in the Southeast or, generally speaking, that it was not necessary from a military standpoint at all times?
A Could you please repeat the question once more? I don't think I understood the question in its entirety.
(The interpreter repeated the question)
A The order was necessary at all times in view of the basic principle of reprisals which was involved.
Q Well then -
A However, it was not necessary at all times in view of the ratio which was expressed in this order and that is how we acted -- in accordance with that order.
Q You objected to the quota provisions in the order then? You didn't object to the fact that you were ordered to take reprisal measures but you simply objected to the fact that there was a fixed quota?
A I never suggested to my commanders-in-chief that on their own initiative they should set certain quotas because I considered it appropriate to take into account the conditions at various times in the various areas and as I have just stated that again depended on the attitude of the population. That completed the circle.
Q General Foertsch, if there had not been a hostage quota, then an individual commander might have executed 200 hostages to one, might he not?
A In theory he could have done that, but in practice he never would have done a thing of that sort.
Q I am in somewhat of a dilemma, General Foertsch. If you believe that the Keitel Order was necessary from a military standpoint, then I can't understand why you protested against it.
A That is no contradiction at all. I have repeatedly pointed out and now I am going to repeat it for the third time. Against the fundamental principle of reprisal measures, I personally --and my personal opinion did not have any importance at the time--I never objected to that personally. I only made objections as far as I was concerned against setting of quotas which weren't flexible at all for the entire area and for the entire time, and according to this principle which apparently was also maintained by my Commanders-in-Chief because they were the decisive persons here action was taken.
Q You agreed, General Foertsch, did you, with OKW that reprisal measures of some kind were necessary?
A Yes.
Q And then you carried out reprisal measures in the Southeast not because they were ordered by your superiors but rather because you felt that you had to in order to pacify your area? We have here not a question of your obeying orders because they were orders from above but rather because you also agreed that such measures were necessary.
A I beg your pardon. Don't think this is criticism but perhaps it is possible that I am -- it is impossible for me to understand so much at one time. If you ask me one question after the other, in sequence, then I will be able to understand them.
Q I am sorry, General Foertsch, I will try to do better. If you agreed with OKW that reprisal measures were necessary, then I take it you carried out such reprisal measures not because they were orders from above but rather because you and your Commander-inChief agreed yourselves that such measures were necessary.
A In order to give you an answer to this, I must state the following. None of my Commanders-in-Chief was ever in such a situation because when we took over the area of Serbia, reprisal measures had already become necessary at that particular time and, unfortunately, in the course of time, this necessity always arose, Whether my Commander-in-Chief on his own initiative would have on his own initiative taken that step if the situation had been different, that I don't know of course.
Q General Foertsch, did you and your Commander-in-Chief carry out these orders? Withdrawn. Did you and your Commander-inChief carry out reprisal measures in the Southeast because you were ordered to do so from above or did you carry them out because you had to from a military necessity standpoint in order to pacify your area?
A We carried out this order because we received this order from a higher level and we had been ordered to do that because this had become necessary and inevitable as a result of the behavior of the population. One thing here does not exclude the other.
Q Well then, you would have taken measures because they were necessary whether or not you had received orders from above to do so.
A I could talk about this subject but under oath and on the witness stand I cannot answer a question of that sort.
Q Would you have taken the reprisal measures that were, in fact, taken even though you had not received any orders from OKW?
A I don't know that. This situation did not exist.
Q General Foertsch, you were faced with a very serious situation in the Southeast from the standpoint of the security of your troops and installations.
It was your job and the job of your Commander-in-Chief to pacify that area, protect your troops and your lines of communications and your supplies. Now, if you had never received a specific order from OKW regarding reprisal measures, would you have found yourselves in a position whereby you would have had to take the reprisal measures which you did in fact take?
A I could imagine that even without an order from the OKW we would have had to use reprisal measures. Whether we would have taken the same reprisal measures, I can't tell you. After all, I can't play a game of make-believe here. I can only tell you what happened. I can tell you exactly what happened, and as far as I can recall, why things happened in that way.
Q Suppose, General Foertsch, the Order of 16 September 1941 had never been issued. Do you suppose that hostages would have been executed at a ratio of 50 to one anyway?
A I don't think so. However, that is my assumption now that the war is over.
A That again docs not go to the core of the thing. I have stated what I think about the fixing of hostage ratios and what I am still thinking about it today. I believe that I have testified about that five times now and even now I still have the same opinion which I had 15 minutes ago.
Q General Foertsch, I am only asking you because I am not clear what your opinion is. Suppose there had been no Keitel order. Would hostages have been executed at 50 to one or not?
A I can't say that. After all, here you would have to present me a with a situation which includes all the factors which prevailed at that particular time. If for example, General Boehme had asked me: I am confronted by such and such a situation: should I order retaliation of the one to ten or one to fifty for certain actions? This is just like a reconstruction of a wartime resolution. In the last end, this still remains theory because I can never reconstruct all these factors.
That is what I call a game of make-believe, and although I may have to use my imagination in conversation, I cannot do that when I am here as a witness in a witness stand.
Q I don't want to have you resort to your imagination, General Foertsch. I will give you the very same situation which you faced in the Southeast and I will specify the period April 1941 until October 1941, the period when Fieldmarshal List was Armed Forces Commander Southeast and you were his Chief-of-Staff. One question.
If there had been no Keitel Order of 16 September, would you during that period April to October 1941 have had to execute hostages at a ratio of 50 to one in order to pacify that area?
A In order to conclude this discussion perhaps, I can perhaps answer that if I make a very clear reservation by saying if the OKW order had not arrived in that form, then I do not believe that I can say now with certainty that Fieldmarshal List on his own initiative would have ordered such a ratio.
Q What measures would you have taken in order to secure pacification?
A This question also lacks the basis for my answer as did the other one. I can only say in this respect that at the time we considered it necessary, and I am still of the conviction today that it was most appropriate and the best to keep as many troops and as well qualified troops, as long as possible in these particular areas.
Q General Foertsch, it was your job in the Southeast to find out how to pacify your area. You weren't supposed to wait for ideas to come from OKW as to how to do it. Now I want to know this. Suppose OKW had not given you -- may I finish please?
A Well, I haven't quite understood it, though. You can go on if you like.
Q Well, I will recapitulate.
A Very well.
Q It wasn't your job or function or duty to sit down in Athens and wait for ideas to come from OKW regarding the pacification of your area and methods and means that had to be used to accomplish that.
You were supposed to have some imagination and initiative and ingenuity yourselves and to make suggestions, the best suggestions, because you were on the spot as to how that could be accomplished.
A Yes.
Q No-
AAfter all, we did do that. That is what we did.
Q And what did you suggest to OKW?
A We suggested, give us as many troops as possible for as long a time as possible and the best troops possible. Then we have the best chance to handle this entire attitude of the population and Fieldmarshal List clearly expressed that in his teletype at the time. Please leave the execution of the measures to the Commander-in-Chief and he will know what action he has to take. That will be the best.
Q Now suppose General Foertsch, that you had not been plagued with this idea of OKW to accomplish pacification?
A I beg your pardon, but I must make an addition here. However, of course, we were dependent on the fact just what material was furnished to us. After all, if we sent a request for two motorized divisions, that didn't mean that they arrived right away. After all, we couldn't just procure them like that. After all, they had to be furnished to us by the OKW and of course in this respect we had to depend on the OKW.
Q Let me now reconstruct, General Foertsch. You asked OKW for troops and they said, "We don't have any." Now my question is to you, faced with that situation; You are understaffed in the Southeast. Now if OKW had not plagued you with their idea of accomplishing pacification via the 50 to one fixed hostage quota route, how would you have accomplished pacification? I take it, you would have had to use some reprisal measures. What kind of reprisal measures would you have used?
A No. After all, we had many other means at our disposal. First of all, we would have thought over what else we could do and I would like to define that clearly once more; up till now I considered it wrong and at this time I still consider it wrong. I shall continue to consider it wrong that the question of reprisal measures and the question of troop strength should he connected with each other directly. That is not correct.
The question of reprisal measures is solely dependent on the attitude of the population, whose duty it is in occupying a country to keep peace and order, and here it does not make any difference for the partisan Meier or franc-tireur Mueller whether there are 20 divisions in the area or four divisions located in the same area. He has to turn in his rifles, that is all there is to it. That is the problem, but you cannot connect these two factors with each other as it is always undertaken here.
Q: General Foertsch, correct me if I am wrong, in stating what your problem was at that time. You did not have enough troops, what you had were overaged and immobile, and you faced a hostile population, is that in general the situation with which you were faced?
A: In part. After all the population was only hostile in part. The great mass of the Serbs at that time was quite reasonable. After all only through propaganda were they made hostile to us. And, that was not the result of our actions.
Q: With that exception have I stated your problem and the situation you faced accurately?
A: Yes, we had very few troops and the troops were over-aged. The troop was rather immobile at that time, that is correct.
Q: How would you have pacified your area if the OKW had not told you to do it by hostage quotas?
A: I can't answer that question definitely.
Q: Would you have burned villages?
A: If we had not received any other troops then of course the pacification of that area would have been rendered much more difficult. If anybody fired from these villages then, of course, we would have taken the necessary reprisal measures against those villages, regardless of the fact if there were four old divisions or 20 young divisions in that area.
That had nothing whatever to do with it.
Q: You would have burned the villages in reprisal even if you had not received an order from the OKW to do so?
A: If it had been necessary in individual cases then we would have done that.
Q: Would you have executed hostages even if you hadn't had an order from the OKW to do so?
A: If the population, in spite of repeated warnings on all sides, and in spite of all explanations to them, and in spite of their duty and if they had carried out the same illegal actions which they did carry out at the time, then of course the population, according to the principle, would have forced us to take similar reprisal measures.
Q: You would have done these things, even if you hadn't had an order from the OKW to do so?
A: The question is much too general.
Q: General Foertsch, I am simply restating what you have just told me, that you would have burned villages, and you would have executed hostages?
A: Yes, that is what you said. However, I have not yet answered the question. Whether we would have done the same thing that the OKW ordered us to do, that as I say is not quite certain I only want to say the following, under the prerequisites which I have mentioned and of the behaviour of he population, we might have been forced to take reprisal measures independent of the troop strength in that area.
Q: General Foertsch, I would like you now to look at the fighting directions for anti-guerilla combat in the east, which you were shown this morning. These are in Foertsch Document Book III.
A: Yes, the fighting directives for anti guerilla combat.
MR. FENSTERMACHER: I wonder if I could borrow Dr. Rauschenbach's German copy to submit to General Foertsch in this regard.
GENERAL FOERTSCH: I have a copy right here. If I may use it?
MR. FENSTERMACHER: Very well. These arc on page 87 of the English, your Honor.
Q: General Foertsch, will you turn to Paragraph 84 of these regulations.
Which are on page 88 of the English, your Honors.
A: Yes.
Q: You have already said that these regulations were finding in the Southeast as well as in Russia?
A: Yes, that is quite correct.
Q: Now, the second sentence, under Paragraph 84, General Foertsch, reads, "As a rule prisoners to be shot on the spot following a short questioning." Docs that mean that there is a summary court martial involved here or not?
A: In my opinion not necessarily. It is to be understood in a way if a summary court martial existed at the time, of course, it would take the necessary action. However, it did not have to take any action. I want to point out in this respect by going into another sentence in the paragraph where it states, "Every unit leader has the responsibility to see to it that captured bandits and civilians who are seized in action are shot or rather handed, and only in wellfounded exceptional cases he is authorized to depart from this principle, reporting the particular reason for doing so." There is no limitation given here which goes to the effect that a Regimental Commander, for example, or a Divisional Commander can be held responsible for it, but it states here, "Every commander of a unit," and that could be somebody with the rank of a lieutenant, or it could be a captain.
Q: In any event, General, from these regulations it was perfectly permissible to execute captured bandits after a simple interrogation; you didn't have to give them a summary court martial if you didn't want to?
A: According to this paragraph a summary court martial was not necessary any more, under all circumstances.
Q: General Foertsch, what is you understanding of the rules of War regarding the rank of a unit commander who may order collective reprisal measures?
A: A reprisal measure?
Q: Yes, what rank does a man who has authority to issue them have to have?
A: That has nothing to do with the previous question. That is something quite different.
Q: This is something new, yes.
A: Exactly. A reprisal measure in general or the order for a reprisal measure, in general, is probably bound to the capacity of a judge, but not necessarily.
Q: What rank must a unit commander have before he can order reprisal measures?
DR. RAUSCHENBACH: Your Honor, I have no objection to the questions, but I want to object to the translation of a previous sentence. The witness has just stated, "Gerichtsherr", which was translated as judge. However, that is wrong. It did not refer to a judge, but referred to a commander, and perhaps it would be better if the witness would clarify the question.
A: A Gerichtsherr is an officer who has the authority to appoint certain courts and to confirm their sentences, In the case of a summary court martial it is usually the independent Battalion Commander.
Accordingly in general the ordering of a reprisal measure would be possible in this framework. This possibility would go down as far as the independent Battalion Commander.
Q: Would it go any lower than a batallion commander?
A: No it would not. Although in the fighting directive against the partisans of 1942, which has just been quoted, the collective measures against villages are limited to the rank of Captain upward.
Q: General Foertsch, the ordering of reprisal measures collective reprisal measures, is a very serious business, is it not?
A: Yes.
Q: Collective reprisal measures are only to be ordered as a last resort after everything else has been tried and failed?
A: Collective measures in any case should not be applied without much consideration. The formulation which you used allows many possibilities of interpretation.
Q: The taking of reprisal measures is a serious job because innocent lives are taken, isn't that true?
A: Please?
Q: The taking of collective reprisal measures is very serious because innocent people are likely to lose their lives, isn't that so?
A: Yes, exactly as in the case of air attacks.
Q: And collective reprisal measures are only to be taken as a deterrent and not as revenge?
A: They serve the purpose of keeping the population from continuing their illegal behaviour and in order to warn them, deter then.
Q: You don't take reprisal measures in order to punish people for what they have previously done, do you?
A: Well, reprisal measures in general are only to be applied in such cases where the perpetrators could not be apprehended, therefore, the expression "punishment" is not quite correct here.
Q: You wouldn't order reprisal measures unless they are in fact to affect the future conduct would you, General Foertsch?
A: Well, you can't express it in such an exclusive manner. I don't know the international definition. In any case I haven't seen it. After all there are two sides to reprisal measures. One side refers to the past, what happened. In view of what has actually been going on, and the other side refers to the future.
Q: Isn't it true, General Foertsch, that the whole idea behind reprisal measures is to affect future conduct and to prevent the conduit from the past being repeated, it is not based on revenue or punishment, but as a deterrent?
A: That is the hope which ever responsible commander who is aware of his responsibility habors whenever he orders a reprisal measure. He hopes in his deepest heart that this will end the whole matter and it will not be necessary to order further reprisal measures.
Q: That is why reprisal measures should be ordered by a Battalion Commander, a man who I believe, is usually a colonel, a nan who is older in years and experience?