In my opinion, there are various degrees of considering and treating an order.
Q. What is you definition of circumvention?
A. I would like to say the following; the lattitude given in an order can be made use of. I believe that would essentially depend on the wording. If the order says: "generally speaking," or "as a rule," or "for instance," or "it may be done" -- if the language is such then a certain lattitude is given which can be made use of. Then the possibility exists to circumvent an order by interpreting it according to its meaning. That, however, would not yet amount to circumvention. An order can be treated according to its meaning. That will be done whenever the grounds on which the order was given have changed considerably. One can act in contradiction with an order by not executing it at all or by circumventing it. I think the last possible degree would be to refuse to execute an order. In these conceptions which I am sure are not exhaustive, the transition from one conception to the other in rather unstable.
Q. Would you say, General Foertsch, that lattitude in the language of an order is the first prerequisite for its eventual circumvention?
A. I don't think it can be put that way. I believe the whole question cannot be clarified just in theory. I believe it can only be clarified with regard to every individual order. One can try to establish the facts concerning to the situation and the time period when the order comes in.
Q. You can't circumvent an order, General Foertsch, unless the language of the order gives you a certain amount of lattitude, can you?
A. Oh, yes.
Q. Well, if the -
A. In theory, purely in theory, I can circumvent many orders.
Q. Suppose an order -
A. That depends on what has been ordered.
Q. Suppose you receive an order saying that in case a German soldier is killed you must execute 50 Serbs in retaliation; can an order of that kind be circumvented?
A. I can only say that if I have the order in front of me and if I am faced with a definite situation -- I cannot explain all that theoretically -- theoretically I can only say that an order has to be executed.
Q. And the way you tell whether a piece of paper is an order or a directive or a regulation is by examining the language and determining whether the language is strong or whether the language used gives the commander lattitude in executing it.
A. To a certain extent, yes, but I don't believe that's an exhaustive definition of the concept.
Q. Now, these regulations that we have been looking at for antiguerilla warfare, you are familiar with that language; could those regulations be circumvented in your opinion?
A. Not in principle.
Q. And then you mean that in fact you did not circumvent those regulations when you received them in the Southeast in November 1942?
A. How this regulation was executed in practice and in the individual case cannot possibly be known to me. There might well have been cases and I suppose there have been cases where a captured bandit was not shot to death on the spot as was ordered here. I am sure there were such cases but I cannot say what the prerequisites were at the time and, therefore, I can't say what prerequisites have to exist in order that certain acts be taken.
Q. General Foertsch, you saw the reports. As a matter of fact, you are the best informed man there is on the events in the Southeast between 1941 and 1944. You can say generally speaking whether these regulations were circumvented in the Southeast or not, can't you?
A. I am sure I was not the best informed man in the Southeast. I was that only with regard to certain spheres. From the reports which came to me I am not in a position to reconstruct or judge individual cases. Basically, the regulation was binding and in general it was adhered to because that is what was its nature.
MR. FENSTERMACHER: That's about the best I can do, your Honors, on the problem of the lattitude in orders and their circumvention. Does that satisfy your Honors?
PRESIDING JUDGE CARTER: I hope you were not doing all this on my account because I think I knew what it meant before it ever started.
Q. General Foertsch, I would now like to show you the regulations for the conduct of band fighting which were issued by the Communist Party of Serbia in 1941 to contrast those with the ones which you received in 1942. You will recall that they were shown to you by Dr. Rauschenbach.
A. But I only had one quick look at them. From what point of view am I to look at them?
Q. I want to know whether there is anything contained in those directives which in your opinion is in violation of International Law regarding the conduct of warfare.
DR. RAUSCHENBACH: Your Honors, the photostat of that regulation was not submitted by me as a document and I have only shown it to the defendant so that he might say whether he could remember that it was the regulation of the Communist Party in Serbia, which he had referred to during the examination. However, if the witness is now to testify in detail as to what is contained in the regulation then I think he should have enough time to read all of it which up to now he has not done but, apart from all this, I doubt the admissability of the question because it seems to me, although Hr. Fenstermacher has just started questioning, still it seems to me that the defendant is asked to judge on International Law. As a witness under oath on the witness stand I don't think that is possible for him, and I don't think he is competent to do it.
PRESIDING JUDGE CARTER: I think probably it is improper cross, examination.
MR. FENSTERMACHER: Your Honors, I am trying to refresh the witness's recollection regarding these directives which he has already testified he has seen and then I will ask him regarding his memory.
PRESIDING JUDGE CARTER: I don't know what bearing the contents of the exhibit can possibly have. It is on an immaterial matter certainly.
MR. FENSTERMACHER: Your Honor, there has been more than one innuendo in this case to the fact that these regulations issued by the Communist Party in Serbia encouraged the partisans to commit all manner of illegal activities.
The innuendo has been in these directives to tell the partisans to execute prisoners and to mutilate captured German soldiers.
PRESIDING JUDGE CARTER: Even that wouldn't justify criminal action on the part of the opposition.
MR. FENSTERMACHER: But it goes to the question of mitigation, Your Honor, and to military necessity. Surely if German soldiers were ordered to be executed and mutilated by the partisans there is some fact for some justification for the severe measures which these commanders took.
PRESIDING JUDGE CARTER: All right. We will let him answer the question.
DR. RAUSCHENBACH: May I just point out, Your Honor, that there is one misgiving which I had and which I am not sure has been sufficiently considered. I don't know whether in the meantime the witness was in a position to read the document sufficiently and I think only if he has done that should he answer the question after this ruling of the Tribunal was made.
PRESIDING JUDGE CARTER: Certainly, the witness won't be expected to answer anything he doesn't know about. If he hasn't read it, he can assert it himself.
Q. Have you familiarized yourself with the contents, General Foertsch?
A. No, I am afraid it wasn't possible in this short time to deal with this document sufficiently to be able to answer the question. Besides, I don't feel at all in a position to answer this question under oath. Quite apart from the fact that I am under the impression, as I said the other day that this is not the whole of the regulation and quite apart from the fact that I am surprised here when I read the second line, "organized bands". Then, in my opinion, the question of what is contained hero is subordinate to the fact that the bands in themselves were illegal.
I would only be in a position -- I might almost, say, after a thorough study; after a long period of leave in order to attend a university --to answer the question so that i can take the responsibility for it under oath.
Q. General Foertsch, you remember having seen the directives of the Communist Party of Serbia for the conduct of band warfare in 1941.
A. In 1941, I did see it. That is correct.
Q. And doesn't your memory tell you that those directives were only concerned with the methods to be used in guerilla tactics -- that is to say, attacks upon railroads and communication lines and attacks from ambush, attacks by night, and says nothing whatever about the treatment to be afforded to captured German soldiers?
A. I don't know that any more and in the direct examination I stated that I do not recall the contents exactly. I said I only know that this regulation gave me the impression at the time that it originated from Moscow. Besides, at the time I looked at these regulations of the Communist Party for band warfare from an entirely different point of view. Not the regulation was important for us, but the behavior of the people. The regulation was interesting for us inasmuch as we tried to establish from it where the spirit came from which instigated these people to commit such cruelties and atrocities. Maybe it was possible to assume from these regulations what methods applied in their actions in order to know how to counter it with a corresponding military action. I never at the time looked at that regulation from the legal point of view.
Q. Suppose, General Foertsch; you keep those directives until Monday and look through them with the idea of determining whether or not there is anything in those directives which orders or countenances illegal activity on the part of the partisans concerning the treatment of captured German soldiers.
A. I can't say for sure that I will be in a position, even then, to make any kind of a judgment. I would be grateful if the question which is to be put to me on Monday could be put down in writing prior to being put to me so that I can answer precisely and then I think I ought to have the opportunity to discuss the matter with an expert after I have formed my own opinion because, after all, I am under oath.
Q. Suppose, General Foertsch, you just familiarize yourself with the contents, study the firectives, think back to the year 1941 when you first saw the directives, and formulate some opinions with regard to the directives and I think you will be able to answer all the questions I put to you.
General Foertsch, I believe you said on direct examination that you were with the German Press Bureau during the year 1925 to 1930.
A. No, I was as a captain an export on press matters in the Reich Defense Ministry. I was not a member of the press. I was an officer and I had to report in the Reich Defense Ministry on matters of the German press.
Q. Your duties were to evaluate military and political matters?
A. Yes, military matters contained in the press and political matters which had any connection to the Armed Forces.
Q. For five years you worked on that complex of the relationship between military and political matters?
A. The circle of questions was somewhat more narrow than you described it now because there were many matters of political and military nature which did not appear in the press. I can only answer a specific question.
Q. You said, I believe, that during that period of the late " "twenties" the two burning issues in the German army were (1) the above politics' conception of the Wehrmacht and the freedom from the shackles of Versailles?
A. Yes, that is about the way I expressed it. I believe I said it was a question of disarmament.
that as far as internal politics were concerned it was the "above party" attitude of the armed forces. Concerning foreign policy, I believe I said it was the problem of disarmament.
Q. Was it during that period that you became sympathetic towards the Nazi Party?
A. No, -- I only became aware of the Nazi Party as a factor which had to be taken into account about 1930, 1931.
Q. When did you work with Schleicker?
A. From 1925 to 1930 and from August 1932 until January 1933,to 30 of January 1933, the assumption of power.
Q. Who was Schleicher?
A. Schleicher in 1925 was a lieutenant - colonel or a colonel, and he was Chief of the so-called Armed Forces Department. Then he became--and I don't know the year--Chief of the so-called Minister Office. Then as successor of General Groener he became Reich Defense Minister. And in November, 1932 he became Reich Chancellor.
Q. And what happened to him subsequently?
A. After the Nazi assumption of power he had no particular assignment, and on the 30th of June 1934, as far as I am informed, he was shot in his home in Babelsberg.
Q. Do you know for what reason?
A. I believe that I know that very well. It is quite an extensive and long story that cannot be answered in one sentence.
Q. Could you be somewhat brief and yet cover the matter?
PRESIDING JUDGE CARTER: It seems to me that this is entirely foreign to any issue we have here. I can't see the materiality of this cross-examination.
MR. FENSTERMACHER: If Your Honor please, you will recall that in the first document book of Foertsch there was a good deal mentioned of Schleicher. But if Your Honors feel that it is irrelevant I shall pass on.
PRESIDING JUDGE CARTER: Well, the details of his death and things of that kind are certainly not material here.
MR. FENSTERMACHER: His death does have political overtones, Your Honors; but perhaps we can pass on.
BY MR FENSTERMACHER:
Q. When did you work for Reichenau?
A. I worked under General von Reichenau from February, 1933 until the middle of September, 1935.
Q. How did you get along with Reichenau? Were you sympathetic to each other?
A. That again I can't answer in one sentence, but I can say the following: When Reichenau took over the then Minister Office, which later on became the so-called Armed Forces Office, I could not follow his thoughts and ideas, and for about half a year I disagreed with him, and I fought with him about many questions. Then for matters of reason I succumbed to the fact that nothing could be changed in inner political masters. Reichenau respected my opinion, and he demanded no more of me than absolute obedience and loyalty, and later on, under this highly intelligent man whom I esteemed from a human point of view, I liked to work, but we disagreed concerning National Socialist questions.
Q. Reichenau was a notorious Nazi general, was he not, General Foertsch?
A. Yes, that is what he was.
Q. And are you familiar with the model order which he issued to his troops in 1941, which was subsequently issued to all other commands throughout the Wehrmacht?
A. This is the first time I have heard of it. I've never heard of it before.
Q. What period was it when you---I believe you said--started to bore from within the Nazi Party? That is to say, you decided no longer to stay on the banks of the river, as you described it, but to got in.
A. I said just now that about around the fall of 1933 I realized that this assumption of power was not a normal parliamentary change of government, as one was used to from previous years. Instead it was a complete change in all political principles and, therefore, one could no longer work with it up to the then customary political and tactical means. One could not achieve anything by the old means. Instead one had to realize and recognize the fact and to try to make the best of it I said under direct examination that one should endeavor to give the Armed Forces a leading part in this now state.
Q. Were you a true and faithful advocate of National Socialism at that time?
A. No, I was a National Socialist with my reason, if such a thing is possible, and I think it was possible at that time, but I was never a National Socialist with my heart.
Q. And you told us about some of the books you wrote during that period? Would you say that those books were filled with National Socialist ideology or not?
A. I have already said that on direct examination that the books and articles which I wrote at the time and which I had to write, National Socialist ideology was contained. After all a Chief of the press in the Reich Defense War Ministry in a National Socialist state could not be expected to make Communist propaganda or he could not be expected to talk about militant pacifism. That was in the nature of my work, and it was also within the scope of the tendency which, at the time, I considered correct.
Q. You weren't enthusiastic about writing those books?
A. I don't know whether it's material, but if I'm asked it I shall have to answer. I think you are thinking of the book, "The Officers of the Armed Forces." This book has a special history which I would have to report a little more in detail if it is considered material. But briefly I can summarize the following facts. The book bears my name, and there are many sentences contained in the book which not I but Reichenau wrote. Even Keitel included a few of his own sentences because for three weeks I worked under Keitel after I had worked under Reichenau. Blomberg too included a few sentences, and I gave my name for reasons which I would have to enlarge upon if that is considered material. But there is something I would like to say. Whoever reads this book from the beginning to its end, and not in excerpts, will only come to the conclusion in my opinion that many National Socialist ideas are contained in this book, but whoever acts in accordance with this book will never by a National Socialist, as he is described today in common language.
He is simply a soldier.
Q. You mean that you were in effect a wold in sheep's clothing, General Foertsch? You were simply undermining the Nazis while you writing National Socialist tracts?
A. I was a sheep when I consented to write the book at the time. That's certain. I am sure that I was not a sheep in wolf's clothing because I, as a major, was too small to do anything like that.
Q. Were you in favor of the political indoctrination of soldiers in the German Army?
A. No, I did not do that deliberately, although I must say I always regarded it in the light of the time--1933 to 1935. I must say that there were many questions concerned in National Socialist ideology which could certainly be affirmed to by a soldier. The only difficult thing was that the National Socialist did not act according to their own principles. They did not live by them.
Q. General Foertsch, you know, of course, that Hitler wanted each German to be a militant bearer of a given political ideology, namely, National Socialism. Were you in disagreement with Hitler?
A. Hitler wanted that, that is correct. I did not agree with him 100%. That was quite impossible. One has to differentiate between those things that were considered good in the light of the times then, and between those things which were considered exaggerated and fantastic, and above all, one must make a distinction between what was actually done in accordance. If I, for instance, say that the common good is more important than private good, that is an ideal which I would subscribe to even today. But if I see that a person does not act by this ideal but acts contrary to it, then it is not important to me whether he is a National Socialist or anything else. I just consider that he acts badly. And you cannot bring all of that into a common denominator.
Q. Would you look not, General Foertsch, at that copy of your book, "Our German Wehrmacht," particularly at Page 9? I believe you wrote this book in 1934, is that correct?
A. For at least ten years I haven't handled it. I must have a look at it first. Yes, I must have written it about 1933 or 1934. I don't know for sure.
Q. Would you look at the passage beginning on Page 9 which reads "It will not be politically indifferent or unreliable men who will be permitted to have to leave the barracks upon completion of their period of service, but on the contrary only men who along with military ability take with them the conviction the Wehrmacht and National Socialist reasons on the same basis."
A. Yes, I subscribe to that even today because I know exactly what I meant when I said it. What I meant is that according to my feeling, National Socialism had originated in its final version from the war expentures 1914-18, and its ethic basis exceeded by far the boundaries of nations. The decisive factor is that Wehrmacht and National Socialism rest on the same basis but in the meantime National Socialism by far deviated from that basis and therefore from my most honest conviction I would no longer write this sentence today. After all, it was written in 1934.
Q. Now will you look at the passage on page 8 which reads: "It is self-understood that there can no longer be a non-party Wehrmacht as there was in the Reich defensive of Weimar interregnum. Furthermore, the fact that a unpolitical attitude can no longer be committed is a commandment of the future. The Wehrmacht of the Third Reich along with the party is the pillar supporting it."
A. I beg your pardon, I haven't been able to find the passage. Is it on page 8?
Q. "The Wehrmacht of the Third Reich, along with the party, is the pillar supporting the National Socialist State. Therefore, the National Socialist ideas will be fostered in it, that is, the Wehrmacht, to be sure by means of other forms which conform to the particular nature of the organizations but with the same aim. The soldier's oath to the Fuehrer as the Supreme Commander of the Wehrmacht is simultaneously an obligation to the Fuehrer of the National-Socialist movement. The soldier's ideas correspond to national socialist thinking and national socialist philosophy is not to be divorced from the thinking of the soldier....Hence in the Wehrmacht of national socialist Germany a political education in the national-socialist sense is indispensable."
A. It is correct that I wrote this at the time and it does not contradict that idea which I expressed as the fundamental basis of my activity at the time. The decisive factor is here too that one realizes when it was written and how things went on afterwards, because the same aim existed undoubtedly at the time and concerning it, it is my opinion that the oath is binding for both sides and I expect that if I make an oath which he expects me to adhere to that he expects me to adhere to that he does the same thing and the other side did not do that.
When I realized that the nazi party and movement went crooked ways, that is the basis of my judgment changed decisively, then my judgment changed too and I believe that is what must be understood and I think it can always be understood. In future too, I shall always change my judgment when its basic reasons have changed decisively. May I conclude by saying that I am not foolish enough to stubbornly cling to a point of view which I have once written down in 1934.
Q. Just one more passage, General Foertsch, on page 2 of that book. "the shackles of Versailles have been removed."
A. Yes, I found the passage, thank you.
Q. "The period of one--sided disarmament has reached its end. The military sovereignty of the German Reich has been reinstated. This Germany owes to its Fuehrer and the National-socialist movement which has been created by him. Now all young Germans will bear arms again and in every house, in every family, there will be the closest personal relationship with the Wehrmacht -- with the resurrected German peoples' army."
A. That is a fact which exists and cannot be denied, and it cannot be blamed on any soldier that he was pleased when the military sovereignty was reinstated; that it was to be misused and abused ten years later could not be suspected by anybody not inside Germany and not abroad, not as early as 1934.
Q. Now will you look at just one short passage more from another book of yours? "The Officer of the New Wehrmacht" which I believe you wrote in 1936.
A. 1935.
Q. Will you look at the passage on pages 32 and 33 which reads -
this is the passage which concerns itself with the joy of responsibility and self-awareness?
A. You mean it is on page 32? All right, I have got it.
Q. "Soldierly leadership rests on the joy of responsibility. It is one of the finest but also one of the most difficult virtues of a leader. The greatest enemy of true leadership is anonymity. This appears in various forms: at times in the nameless authority of an office, i.e., in bureaucracy, at times in the conscious crawling behind a higher order, law or regulation, at times in the attempt to deny 'responsibility' in the event of failure in a given act."
Did you write that?
A. Yes, indeed.
Q. Do you endorse that attitude today?
A. Yes, I believe that is corrects
Q. General Foertsch, what was the political philosopy and tenets that you wished each German soldier to be indoctrinated with?
A. I am afraid I didn't understand it. Could you please repeat it?
Q. As I read these passages, I get the impression that you wished each German soldier to be taught to think as a National Socialist and I am wondering which particular tenets of National Socialism you wished to be emphasized in the education and in the actions of each German soldier?
A. May I again repeat in my own words the question so I can see whether I understood it correctly? What you want to know is what features of National-Socialist thinking I wanted to plant into the thinking of the soldier? Is that what you wanted to know? Did I understand it correctly?
Q. You understood correctly.
A. May I think about it for a moment? The answer is more difficult than the question. I believe I can answer it briefly -- all those thoughts of National Socialism which coincided with the thinking of any decent German soldier.
Q. Do you know what Hitler's and the National Socialists' attitude towards the Jews was, General Foertsch? Did you wish each German soldier to think likewise?
A. No, I have already said that I - regarding the Jewish question, such as it was tackled by National Socialism, I regarded it as foolish, I think that is the expression I used, and I think another expression I used was incorrect -- unjust. I don't know, it was a week ago.
Q. But you didn't say in this book that you wished each German soldier to know about National Socialism except for the attitude of the National Socialist towards the Jews?
A. No, and I might say generally that this is where I meant I was a fool to give my name to this book. It says here the following. I read it a short time ago, that is why I know it. There are many things contained here, which I did not actually want to include, because it actually originated from other people's pen but there are many things contained in there which were attacked by the party examination office which existed at the time, the censorship of the party. I could enumerate these points if you want me to, and this book has the same feature as a lot of other documents. One can only understand it if one reads it completely. Every excerpt gives a one-sided picture. If this book is to be used as evidence for me or against me, then I would ask you to read the whole book so that one can gain a picture of what would have happened if the principles laid down here would have really been -- what would have been the result if the principles laid down in here had been adhered to. Not a National Socialist would have emerged but a soldier.
Q. You believe that if one reads between your lines, you would find out that you were subtly trying to undermine National Socialism rather than advocating it?
A. No. That is not what one would establish and that would not have been the right way either. I did not want to take a part of undermining but I wanted to say it in a way as the following -- not to be brake of the car but to be the guiding factor.
I wanted to be inside National Socialism and I wanted to guide it. What I said was to swim in this broad stream of the movement of that time with the aim to get to the head of that not to stand by the banks of the river and to spit in it. But I would never put that down publicly. I would never tell that to other people against whom I am supposed to apply this method. That would be the first prerequisite for a failure. What I honestly wanted was that we should go along with the movement, that we should take over leadership and then such excesses, such as we experienced them, probably would not have happened. Then, European history would have run completely differently.
Q. General Foertsch, you knew what Hitler's and Rosenberg's ideas were regarding the Slavic race and the so-called mentality of the Balkan people?
A. No, I didn't know that.
Q. You didn't know that in "Mein Kampf" and in Rosenberg's book "Myth of the German People", I believe it is called, there is talk about the superiority of the German people -
A. I only know the title, I don't know the book. I didn't read more than the first ten pages. It is called "The Myth of the 20th Century" -- that Rosenberg book. I did read "Mein Kampf."
Q.- You didn't know at that time that Hitler and Rosenberg and the other Nazi were preaching the superiority of the German people and the inferiority and beastiallity of the Balkan and Slavic people?
A.- Hitler never put it that way. He was much too clever to do it. He might have thought that way, I don't know that, I don't know him or what he actually thought.
Q.- Wasn't it a part of National Socialistic ideology to think of the Balkan and Slavic people as somewhat different from the western peoples, inferior more animalistic, less cultured; wasn't that all part of the National Socialistic teachings and wasn't that exactly what you were asking that every German soldier be taught?
A.- No, I don't know. I would have to have proof for it. I have never known the opinion that the Slavic nations are an inferior race. I have always maintained the opinion that in contrast to the completely senseless race theory of National Socialism that a healthy mixture between German and Slavic blood would have the best results that one could possibly imagine, because in my opinion people like Hindenburg and Seeckt if one just looks at their faces are a mixture between German and Slaw. Everything that is valuable to the eastern German man and I myself originate from that country, therefore I am a little shy in that respect. All that is valuable in those people can be traced back to the fact that there is no oneside separation between them and the Slavic blood. Now in the southeastern area I never heard anything of that. I only know that before the war, for years before the war, we tried to gain their favor even if we were not very clever in this endeavor. I just now remember that officers were invited to participate in special trips through the southeastern area, through Yugo Slavia. These trips had certain politi cal aims, they were intended to recruit and make the connections more binding. The southeast was for Germany a market in every respect, a better market could not have been found. It would have been senseless to destroy it.
Q.- The language which Keitel used in his order of 16 September 1941 regarding the mentality of the Eastern peoples and the Slavic peoples came as quite a surprise to you then?
A.- I would have to study the text from that point of view because I have not heard it from that point of view before. I remember one sentence contained therein and maybe that is what you mean. It says that, "In those countries frequently human life counts for naught." That however is an actual fact.
Q.- General Foertsch, you don't believe that the political indoctrination of the German soldier, which you advocated and encouraged was responsible for the acts of the German soldiers in the southeast from 1941 to 1944?
A.- No, one cannot put it that way.
Q.- I would like now, General Foertsch, to pass to your responsibility as a chief of staff and in that regard, I would like to remind you of the passage which I have just read from your book concerning "The joy of Responsibility".
A.- Yes.
Q.- For how many years were you a chief of staff between the years 1939 and the end of the war in 1945?
A.- From the beginning of the war until I parted from the southeast that was including the Hungarian events of April 1944, a long time.
Q.- And then you become successively division commander, corps commander and finally an army commander?
A.- Yes, that is correct.
Q.- Was the transition from a chief of staff position to a commander of troops an easy one for you to make?
A.- It was an enormous relief for me, I longed for it with all my heart and from a military point of view I was the happiest person as a division commander always seeing it from a military point of view, because at last I had something else than the position in the staff, now I had real soldiers.