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?
A. In any case the importance of such a measure is such that not every single soldier can perform it. That is quite clear.
Q. What is the rank of a Battalion Commander, generally speaking?
A. That varies considerably. In peacetime, normally, in our Army it was a Major or Lt. Colonel. At the beginning of the War it was a captain, and when I was in charge of a division it was mostly a First Lieutenant, as the result of the serious losses which we had suffered. That varies considerably.
Q. General, wasn't there danger in permitting a mere captain who was very likely to be a very young man, to take reprisal measures, to order collective reprisal measures?
A. After all the age is not always proof of the fact that a man can take a high amount of responsibility, even though the experience, of course, is quite important. However, I do believe that a reprisal measure in itself to the person confronted by the necessity, that this person will realize this affair is serious, and even a person comparatively young will normally realize the responsibility he had when confronted with the question.
Q. You didn't think there was any danger in permitting a mere captain to order collective reprisal measures?
A. No.
Q. Now, General Foertsch, will you look at Paragraph 100 of these regulations for anti-guerrilla warfare in the East.
MR. FENSTERMACHER: Page 29 of the English, Your Honor.
Q. It states here "the population is to be included as far as possible in anti-guerilla combat" What does that mean, General Foertsch?
A. The sentence which you have just read?
Q. Yes, what does it mean to include the population in antiguerilla combat?
A. The population is to collaborate with us for the purpose that the partisan bands can be combatted properly. That is to say, for example, towards the German units which combat partisans they should help than and find ways and means in order to help them, and they will furnish guides into the woods and into the mountains and they can help carry supplies, whenever necessary, and things of that sort.
Q. You mean that you were asking the population of the occupied countries to help you, enemy troops, in combat against their own units and own people, who were trying to free the country from your troops?
A. I believe you have to look at that matter differently. After all you can't call a partisan band a troop unit and then you must not forget that at least in the Southeast the native population suffered as much under the partisan bands as the German units, if they did not suffer more. Therefore, the combatting of the partisans was not only in the interest of the German Armed Forces, but also was absolutely in the interest of the population.
Q. Who decided that, you or the population, as to whether the partisans were in the population's interest or against the populations interest?
A. In the last act the partisans decided that by their activity, when they set fire to 100 centners of grain, this was an act against the population. If they were reasonable and did not do than this was good for the population.
Q. General Foertsch, lets be realistic, you don't mean most of the people in the occupied country preferred German troops and preferred to help German troops, to helping the Partisan units, do you?
A. No, I don't mean to say that at all. No people like to be occupied by another nation.
Q. Then when you fording people to help you against the partisans you were asking them to do something against their will, weren't you?
A. No, this cannot be said so generally. In the Prosecution documents, and I believe in the new documents from Washington, we have quite a number of recorded cases where the population liked very much to help the German forces, and where on their own initiative they did much to get rid of individual bands and franc-tireurs and saboteurs, etc., and to turn them over to the German units.
They only did that to get rid of these people.
Q. Did you ask the population first whether they wanted to help you against the partisans, or did you force them to help you whether they wanted to or not?
A. I don't know that because I was never in charge of a unit personally engaged in combatting the partisans.
Q. What do you think, do you think the people were asked first whether they wanted to fight on your side or not?
A. I believe that wasn't the question at all. In a part of the country where the people were reasonable, even if they did not like us there they would help us, and wherever these people on their own initiative took the sides of the partisan bands, they would not even help us, if we asked them to.
Q. You are familiar with the provision of the Hague Rules of Warfare which says that an occupying army must not force the population to engage in activities against their own units?
A. Yes, that is quite correct. Quite correct, it is written there. However, we are dealing with a different case. Here this refers to the regular army of the enemy.
Q. General Foertsch, will you look now at paragraph 105 of these regulations.
MR. FENSTERMACHER: On page 90 of your Document Book, Your donors.
Q. Dr. Rauschenbach, asked you about this paragraph this morning. The second sentence, "It may be expedient to provisionally arrest all male inhabitants for this purpose and to watch them for sometime in special camps, in order to find out by this method through confidental agents, those who are siding with the bands." I beg your pardon, I mean the sentence before that, - "By the process of clever questioning of all the villages and by comparing the contradictions, the bandits and bandits helpers must be pinned down and rendered harmless." Dr. Rauchenbach clarified the problem of "must be pinned down." I would like to clarify by the language "rendered harmless."
Can you help us?
A. Well, that depends on the individual case. If these bandits were found with a weapon in their hand in combat then of course they were shot. When they could be considered to be assistants to the bandits then it depended in this case whether they were active supporters of partisans, who cooperated with the partisans on their own initiative, or whether they were passive band helpers, that is to say, whether they were forced by the band to give some help of some sort. In any case here it is meant that as bandits or bandit helpers they should not be given the possibility of taking further action, so that they are not in a position to help the partisan bands any more. If they are confined in a camp then they cannot take any further action.
Q. General Foertsch, this language does not talk of bandits with arms in their hands; it talks about finding out who the bandits and the bandit helpers are by questioning the population, and after finding out by clever questioning to render the bandits or bandit helpers harmless; is there anything about a summary court martial there?
A. Yes. But to give an example, this does not mean that the bandit has to be in the same village. After all, for example, in the course of the examination of the population it can be determined that a young man who has resided in that village up to this time has been staying with the band for about 8 days, and that he hides in the forest somewhere, it does not state here that as a result of such an examination immediately some action has to be taken.
Q. General Foertsch, isn't this language an invitation to threatening and coercing the village population to reveal on their fellow neighbors?
A. The technique of interrogation frequently is connected with other intentions. For example, I was not in charge of any interrogations as they are mentioned, but the purpose is to finally set an end to the activities of the bands.
Q. General Foertsch, I don't want to get into another Merry-geround discussion with you, but perhaps you can answer this one question; where you pleased, when those regulations arrived in the Southeast, did you feel that they were necessary for you to accomplish your mission down there?
A. These directives about combatting the partisans when they were issued, without any doubt clarified many things or clarified several things which were unclear up to that time, however, in one point they did not satisfy our desires at all, that was in the treatment of bandits who had been captured.
Q. You would not have resorted to any of these techniques if you had not received an order of this kind?
A. No. I want to remind you of the fact that already at the turn of the year 1941 to 1942 the Commander of the Armed Forces Southeast was favorably inclined towards the thought that the captured bandits should be kept alive even under conditions which were not very pleasant. That becomes evidence from the agreement for the deportation of prisoners in order to do some sort of work in Norway. I also want to remind you of the fact that in July of 1943, that is one half year after this order was first issued, this paragraph was actually rescinded in practice by the decree that captured bandits were to be treated just like Prisoners of War and both of these things corresponded to our ideas on the subject.
Q. General Foertsch, I think you have said that these regulations were absolutely binding upon you; is that correct?
A. It was a regulation.
Q. A regulation differs from an order insofar a sits binding effect is concerned; docs it not?
A. Yes, directivesleave us a certain amount of liberty.
Q. They did leave you a good deal of liberty, did they not, General Foertsch?
A. That depends on the individual matter, one cannot put that in a general way.
Q. You preferred to receive directives and regulations from the O.K.W. to Revolving orders from them; did you not?
A. One cannot put that generally either. Sometimes a situation arises in certain villages where we must very strictly adhere and where we prefer a binding order so having lasitude.
Q. We are talking here about the sphere of reprisal measures and I take it in that realm of activities you desired to have as much independence from the O.K.W. as possible?
A. In principle, yes.
Q. Directives and regulations were an easier way for you to circumvent O.K.W. desires?
A. That is correct in principle.
Q. These regulations for the combatting of guerrillas were veryeasy to avoid and circumvent; were they not?
A. Well are you now referring to the directives about the combatting of partisans?
Q. Yes, the one that you have in front of you.
A. Yes. that was a regulation.
Q. It was easy to get around and circumvent; you did not have to obey it to the letter?
A. Yes, a regulation isobligatory; in any case with regard to the principles which it refers to, of course it always depends on the formulation.
Q. In the case of regulations you had a great deal of latitude regarding tho precise execution of the principles which were laid down?
A. One cannot put that so generally either, much lasitude.
Q. Look at the language here, General Foertsch, look at paragraph 84, page 88 of the English, Your Honors. Look at the second sentence: "As a rule, prisoners are to be shot on the spot following a short questioning." That term as a rule leaves you a perfect out, does it not?
A. Yes, however, I believe you are reading that wrong. It states before "captured bandits are to be shot or hanged." In the first place this is stated quite clearly without any limitation and now comes the individual regulation, that is to say "as a rule after a short interrogation the captured bandits arc to be shot right on the spot." That is to say normally they are to be shot right on the spot and normally after a short interrogation, however, the order for the shooting, is already contained in the first sentence of the paragraph without any limitations.
Q. Well that is all the device that you and your Commander in Chief would need, you could circumvent it very easily. It is general rather than specific and as a matter of fact you told us yesterday that General Loehr seized upon precisely the same opportunity with regard to the commando order to circumvent orders of the O.K.W.?
A. I beg your pardon, but this is not a parallel thing. I would like to point this out once more because I think you did not quite understand me. In paragraph 84 it is stated that "captured bandits, as far as these are not exceptional cases, are to be hanged or shot", then it is stated "as a rule captured bandits after a short interrogation are to be shot right at the spot and only in exceptional cases are bandits to be turned over for individual interrogations if they are suitable." Therefore, the two sentences which begin with "as a rule" and the sentence which begins, "Only in exceptional cases" they belong together as far as the context is concerned, for after all the contrary of a rule is the exception and no limitation is placed on the order that captured bandits are to be shot or hanged.
Q. You don't believe, General Foertsch, that a Commander who wanted to do so, could toll Hitler's spies if there were any around that people that he is holding in that particular camp, that he is holding for anti guerilla activities and that he is holding them for a short questioning or as exceptional cases or desertors, you don't believe that this would be an excellent opportunity to circumvent an order of which you disapproved?
A. I am convinced that is practice the method which you have just hinted was frequently used, however, it is not possible that a Commander-in-Chief now can simply rescind an essential part of a regulation which after all has been passed on to the individual companies.
Q. He may not be able to rescind it, but he could get the divisions and corps commanders together and ask them to circumvent it in exactly the same way General Loehr, as you said earlier, asked his Commanders to circumvent the Commando order.
A. In theory that is not impossible, however, the better way was without any doubt that which Loehr actually used. He tried again and again to effect an order which practically would rescind this entire affair, that would be along the same line as the attempt of General Kuntze in his oral report to the O.K.W., also tried to have those provisions rescinded.
Q. Look at paragraph 86, General Foertsch. "Corrective measures will normally be required against villages;" couldn't the Commander say that the situation was abnormal and therefore he chose not to burn the village? The language in these regulations and directives was broad enough for any commander to do whatever he wanted; wasn't it?
A. No, with regard to this sentence without any doubt everybody was able to say "this does not come under the rule, but in this case it is an exception and therefore if I do not do anything about this village, I am not violating any regulations, for here it says clearly against villages, etc., as a rule collective measures will be required," that is to say exceptions are quite possible and according to the indivi dual case a responsible commander could use this possibility.
Q. Now look General Foertsch at the language in 105, "It may be expedient to provionally arrest all male inhabitants, etc." The commander who wanted to circumvent O.K.W. orders would seize upon language of that kind, wouldn't he?
A. Yes, I am just reading it now, yes. Well, what was your question on the subject, I don't understand it.
Q. My question was to the effect that language of that kind "it may be expedient" to do this or to do that, it was exactly the same kind of language you or a Commander would seize upon to do exactly as he wished and to circumvent orders and to choose the reprisal measures which be wished to choose, not with standing O.K.W. orders?
A. "It may be expedient", this expression allows here a certain amount of liberty.
PRESIDING JUDGE CARTER: Don't these orders allow latitude rather than permit circumvention, aren't we getting a little off the subject calling it circumvention of an order?
MR. FENSTERMACHER: Well, perhaps I can clarify that through the witness, Your Honor.
PRESIDING JUDGE CARTER: Before you do, I think we will take our afternoon recess.
THE MARSHAL: The Tribunal is in recess in 15 minutes.
( A recess was taken.)
THE MARSHAL: Persons in the courtroom will please take their seats.
The Tribunal is again in session.
PRESIDING JUDGE CARTER: You may proceed.
BY MR. FENSTERMACHER:
Q. General Foertsch, I believe you told us already that there were several orders of the OKW which you received in the Southeast which you tried and did circumvent. Is that true?
A. There were some individual orders where certain possibilities were given.
Q. What kind of orders were they? How were they worded. What was the language used?
A. I believe in this case we should not concern ourselves with the language and the actual text which did play a certain part but was not so very important. In stead we should concern ourselves with the individual case in question. Basic orders could not be circumvented.
Q. Isn't it true, General Foertsch, that a Commander who wanted to go his own way would look carefully at the language in the orders which he received to determine whether the language used gave him enough lattitude, so far as his individual activities were concerned, and if the language was broad and gave him a lot of lattitude for independent action then he was able in effect to do what he wished to do, rather to do what OKW intended him to do?
A. The language and the lattitude which were given in the language of the orders were decisive. It was also very important that this order demanded and concerning what particular sphere it was given.
Q. Take some of the basic orders of the OKW. Take the one we have been considering for some time now, the Keitel order of the 16th of September 1941. Was it possible to circumvent that order?
A. It was not possible to circumvent it in my opinion.
Q. You mean---
A. However, if I may add something, I believe it is important to clarify what we understand by "circumvent."