A: Authority is not the right expression.
Q: Were they not matters which came within current matters over which you did have authority when the Commanderin-Chief was absent?
A: The concept "current matters" and the concept "decisions" have nothing to do with each other. Current matters are affairs which on principle have already been decided.
Q: Who would OKW have held responsible during the period when List was absent and before Kuntze arrived?
A: Responsible for what?
Q: If anything went wrong at headquarters of which OKW disapproved?
A: If, for instance, the reports would not have come in on time in the OKW, then I would have been the responsible person. If, for instance, in the daily reports there would have been a whole passage omitted, let's say for instance concerning Greece, then again I would have been the responsible person. But concerning the actual events in the area, the actions that were carried out, activities, decisions, I could not be held responsible, according to the regulations, as I have described it during direct examination, only the individual commanders could be held responsible for that.
Q: Wasn't it strange, General Foertsch that when List went on leave in July, he appointed Felmy as his deputy but now when he became ill, he did not appoint Felmy according to your testimony?
A: No, the situation was somewhat different. When the commander-in-Chief went on leave, as was customary, he suggested to the OKW that General Felmy, the senior commander deputized for him.
Then the superior command said either "All right, we agree," or they said "No, we do not agree", for this period we will appoint another deputy." During the time of leave, the OKW happened to agree with that suggestion, but when Fieldmarshal List was operated on, the situation was entirely different. At that time, nobody could possibly know for what length of time the Commander-in-Chief could not be counted on. But since according to the army doctor, the period that Fieldmarshal List would be absent, might be quite lengthy, I asked the OKW to regulate the question of a deputy as soon as possible. Fieldmarshal List himself had no influence on that question whatsoever.
Q: General Foertsch, if a Chief-of-Staff had no authority and was not very important, can you explain why at the time of the Italian capitulation the Chiefs-of-Staff, the Italian Chiefs-of-Staff were executed the same as their commanders? Look at Exhibit 327 in Document Book XIII at page 61 in the German and 77 in the English.
A: I know what you mean.
Q: There is a report from the -
A: And I have already, because I sensed a hint of that kind at the time, mentioned my attitude concerning this during direct examination. It says here "attitude of the army" -that is the second Panzer army -- that is the attitude of one Specific authority in one specific case. Then it does not say "responsible are" but instead it says "co-responsible are generally." Besides, I personally consider this opinion not correct. In every individual case, a summary court martial procedure established who was actually guilty. If a Chiefof-Staff is actually guilty, then it can be assumed that he was sentenced but if he is not guilty he will be acquitted.
Q: General Foertsch, how could a Chief-Staff possibly be guilty if he had no command authority?
A: There are Chiefs-of-Staff who exceed their authorities and there are weak Commanders-in-Chief too who let themselves be guided by a Chief - of-Staff. I never experienced one in the German army but theoretically I can imagine that there are such Commanders-in-Chief.
Q: You think then in the case of the Italians, at least, it was a question of whether the Commander-in-Chief was weak and his Chief of Staff strong that should govern?
A: That depended on the personality. For instance, I remember exactly that in the case of Gandin and in the case in Kephalonia, it actually was reported to me at the time, the Chief-of-Staff was the man who went over General Gandin's head and who had a very much stronger influence in that particular case than his Commanding General, and that was within his authority. However, I do not know the basic regulations of the Italian army concerning the position of a Chief-of-Staff.
Q: Do you believe, generally speaking, that it is a question of personality that governs the responsibility of a Chief-of-Staff?
A: No, I didn't intend to say that. The responsibility of the Chiefs-of-Staff has been laid down clearly in the manual for general staff officers but theoretically I can imagine that in specific situations, for instance like the one in Kephalonia, the Commander-in-Chief let himself be guided by his Chief of Staff.
Q. Here, General Foertsch, in Exhibit 327 is on order of the 15th Mountain Corps to the SS Division, end it states, "Accomplices generally arc older commanders and General Staff Officers."
A. On what pope is that please?
Q. Page 61 of the German and page 77 of the English.
A. Yes, I have it.
Q. "Accomplices generally are elder commanders and General Staff Officers." Page 63 of the German and page 80 of the English it talks about proceedings: "Sentenced to death in absentia by summary court martial were: General Bacuzzi, Commanding Officer of Infantry Division Bergano, Col. Boschi Chief of General Staff, Division Gergamo, Admiral Bebesi." You disagreed with the conception of the Panzer Army regarding the Chief of Staff of the Italian Army?
A. No, I have already said that I do not share their opinion. If here as on page 63 it says "the Chief of Staff of Division Gerbamo was sentenced to death in absentia", then there must have been some special reasons for this fact. I believe there was an investigation, because it says in the last sentence; "records of investigation passed on by courier."
Q. The responsibility cf the Chief of Staff in the German Army is simply an internal German affair and has nothing to do with International law, so far as you know, has it?
A. I don't understand the question. It is not comprehensible to me.
Q. Do you know if there are any provisions in international law which relieve a Chief of Staff from responsibility or is that simply internal German Military Law?
A. International law, which of course I do not know in detail, will never intervene, in my opinion, in organizational matters and regulations of command of the individual nations. International law will never lay down who, in specific cases which cannot be overlooked by the International law, should be responsible. A law only estab lished that certain actions are in contradiction to law, and other actions are legal.
A law can never establish the how or why. That will always have to be subject of a thorough investigation.
Q. General Foertsch, by virtue of your experience in the pressebuero in Germany before 1939, and by virtue of having taught tactics in the Reich Military Academy before 1939, were you not in a particularly influential position in the 12th Army in the Balkans, where there is such a relationship between tectics and politics?
A. That has nothing to do with each other. My activity as a press expert in the Reich War Ministry, I might even say was an impediment for my later assignment, because it was not work of a general staff nature. Somebody might have done it, as well, who had not been to the War academy. One would overestimate the insight of the Armed Forces Office by far if one assumes that they would deliberate on all these matters. Unfortunately, they did not sufficiently into account the suitability of individual officers for particular assignment. My appointment as chief of staff of the 12th Army I might almost say was a matter of chance. The Chief of Staff of Field Marshal von Bock was withdrawn for reasons not known to me, and General von Greiffenberg, against the wishes of Field Marshal List was made his successor, and since I happened to be down in Athens I was put into that position, strangely enough on the very day when I expected to be called back to Germany.
Q. You don't believe that you exerted any particular influence on events in the Balkans between 1941 and 1944?
A. I have endeavored to exert influence on the events to the extent that according to my duties and according to my best knowledge and conscience I advised my Commander-in-Chief.
Q. If you had no particular influence in the Balkans, General Foertsch, can you explain why Himmler complained to Keitel about you in spring of 1944? General Warlimont talks about that in your affidavit in your Document Book I?
A. I know that, yes. Himmler had his agents all ever the place, and it is well possible that it struck him that within my staff I did not attach any importance to National Socialist attitude. Besides, for a long time Himmler was suspicious of me. That could be traced back to a remark I once made at the time when General Fritsch was dismissed where I said, without taking notice of my audience, "this whole affair of Fritsch has been instigated by the SS," and "In my own opinion, "I believe that is the way I put it, "it is a great shame." Besides, at one time I had the pleasure to read in the file of the SS office my own name, which was very awkward for the official concerned.
Q. Let's turn now to the Resistance of the partisan. You said, General Foertsch, as I recall, that you considered partisan activity illegal, first, because there had been a capitulation of the Greek and Yugoslavian Army, and second because the partisans didn't conform to the regulations stated under the Hague Rules of land warfare?
A. Yes, that is correct. Besides I said because the population, according to International law, was obliged to remain peaceful and to take no actions against the occupied forces.
Q. Did you ever feel that the War against Greece and Yugoslavia was an unjust war?
A. I could not judge it and I cannot judge it because I did not have the proper insight in the basic principles involved, and I haven't got it today, besides it was not my task to judge that.
Q. You have no ideas on that question even today?
A. I personally am particularly interested in historical events, and I have also concerned myself with the historical events of war. One of the main doctrines which I have deducted for myself, is the one that every judgment of a historical or war historical nature can only be made with a great caution, because only very rarely one knows the basic facts thoroughly.
Q. You know, General Foertsch, that in 1939 Hitler invaded Albania in March?
A. You mean Mussolini?
Q. Beg Pardon. You know Mussolini invaded Albania in 1939 then after the Polish and Western campaigns Roumania and Bulgaria were coerced to sign the anti-comintern pact with Germany?
A. I learned this as every other German, from the press and from the radio.
Q. And early in 1941 at Germany's instigation there was a Bulgarian-Turkey treaty of friendship to neutralize Turkey, do you remember that?
A. I do not recollect that. I assume it was that way. I am not aware of it.
Q. With Albania in possession of the Italians, Roumania and Bulgaria members of the pact, Yugoslavia was completely surrounded and asked to join the axis itself.
A. As far as I remember there was an agreement with Yugoslavia, I believe it was affected in March. I do not remember its contents exactly, but I believe that I do recollect that Yugoslavia too joined the Pact, or at least they undertook not to start any hostilities against Germany.
Q. Isn't it true that after the coup d'e'tatlie the Yugoslav Government signing the tri-parti treaty agreement Hitler invaded without getting any assurance from the new Government?
A. I don't know that. I didn't know it afterwards. At the time I was not informed about them and later on no information was available to me concerning these facts.
Q. You knew about the undeclared bombing of Belgrade on 6 April 1941, didn't you?
A. Whether there was a warning or not I don't know, but I know that it took place.
Q. And you know about the 100 to one order Field Marshal Weichs issued at the close of the campaign against Yugoslavia in April, did you not?
A. You mean the order which is contained in the documents, and of which we gained knowledge because we made inquiry about it, the order of 23 April--is that the one?
Q. That is the one I mean.
A. Yes, I gained knowledge of it, that is correct.
Q. You never felt that your armies were in Yugoslavia illegally and therefore any resistance by the Yugoslavs against you was legal activity?
A. That the armies were in Yugoslavia illegally is not the point at all, and I don't even know whether you can put it that way, that an army can be somewhere illegally. A war is waged in the manner that an army, invades the country against which war is waged, and if then the army is in that country it is there because of the events of the war. That is not a question of legality or illegality. It is a question of the consequence of the effects of politics on which a soldier, and especially a soldier not in a leading position has no influence whatsoever.
Q. You never tried to put yourself in the position of the Yugoslavs?
THE PRESIDENT: Are we interested in that, Mr. Fenstermacher?
MR. FENSTERMACHER: Perhaps it is a bit irrelevant.
THE PRESIDENT: Let's confine ourselves, if possible, to matters cf cross-examination, and not to theoretical matters, which in the main are not our concern except as you may limitedly develop them.
JUDGE CARTER: I may add to that, Mr. Fenstermacher, these defendants are charged with the commission of particular acts,--the issuance of illegal orders, the carrying out of illegal acts of war. Now, it seems to me that is the issue here. What they may have thought of International matters or even of the Nazi Party, although except as it might bear upon the intent of why they committed these acts, seems to me to be absolutely immaterial. Why shouldn't your cross-examination be limited to the things this defendant is alleged to have done, and his connection with the acts with which he is charged?
If we don't do that we will be here until Easter on matters which appear to me to be absolutely irrelevant.
Q General Foertsch, you said that the partisans never wore uniforms insignia?
A No, I said insignia or uniform we e occasionally worn, but I was never under the impression that there was a uniform clothing or a uniform identification by way of insignia which would have been recognizable from a distance, and I have said that this problem is less important than the question whether or not bands are altogether legal or illegal, because even a uniform band or band movement can be illegal.
Q General Foertsch, there are reports here from practically every month during the German occupation which refer to insignia of the partisans, refer to the Communists in Russian uniform with Soviet Stars, refers to Communists being shot who were fully uniformed, with reference to Cetnik companies and battalions lists of their units and leaders, and later in 1942 and 1943 references to the Yugoslav Home Army, of 150,000 men were under command of Mihajlovic and to an Army of National liberation 1 ad by Tito; in spite of this you believe there was no uniform insignia?
A On direct examination I believe I dealt with this subject in detail. I designated the frequent mention of uniform and insignia as an indication that a real uniform clothing and insignia was not there, and I have given the following reasons: If an army fights against a regular belligerent army, then one would never during such a campaign refer in reports and messages to remarks such as "The enemy was uniformed in a certain manner," and "a group of enemy wears a certain insignia", because it is a matter of course that an. enemy army wears a typical uniform, which is recognizable from a distance, even in spite of camoflage. The very fact that this is repeatedly pointed out in these reports before any action or operation to k place, "according to our intelligence the enemy wears part of a certain uniform, and probably certain insignias." This fact proves that there was no uniformity but that in each individual case the situation was different, and that before an operation took place intelligence had to report, and that before an action or operation took place our troops had to be informed accordingly, for instance to the effect "During the next two weeks you will probably find yourself faced with people who will probably wear certain clothing and certain insignia."
If it is mentioned in certain reports that certain partisan troops wore black uniforms and the men wore white shirts, and certain insignia were worn, this only proves that was an exception. During a normal operation, there would be no reports to this effect. For instance, I, as Commander in Chief of the First Army never received a report saying, for instance, "The American 20th Panzer Army near Crailsheim wears khaki uniforms, wears steel helmets and on their shoulder have a certain divisional insignia," because that is a matter of course and did not have to be mentioned; but, exceptions have to be reported, and this is how these reports have to be understood.
Q You treated the partisans, who wore insignia, just as if they had not worn any insignia?
A Yes, of course. A robber remains a robber even if he appears in a tuxedo.
Q Isn't it true that one of the reasons why you had so much trouble in the Southeast was because you withdrew your troops from the Russian campaign before they even conquered the country, and there were parts of the country in which Mihajlovic, the Cetniks and Tito's partisans continued to exist and were never conquered?
A Noo that is not correct. The partisans, Mihajlovic and the Cetniks did not exist prior to the capitulation. Before the capitulation there was the Yugoslav Army. These Yugoslav armies capitulated and was therefore eliminated from all future fighting.
Q Now, if for instance in the mountain recluses or the inaccessible country there were some people who resisted later the German occupation forces, that was no longer the Yugoslav Army, but was something entirely new. For instance, let us say in Germany a former Song Organization, which now brings some rusted guns from some sheds and attacks tomorrow an American ammunition depot, such an association would never be regarded as part of the old German Wehrmacht by the Germans or Americans.
Q How do you explain any reference to the Tito state with an elaborate administration, with a Post offices and Taxation and even recruiting of inhabitants for its army?
A These indications can be explained by the effects, because we knew that since the effect of the partisans in the area which they occupied temporarily and especially in the area which the Italians had given them, grabbed everything which was normally done by the administration. But that doesn't make them legal.
Q They controlled an area which you were unable to conquer, isn't that true?
A We were in a position to conquer it because we did conquer it. The Italians concerning this area of the Grimitsch mountains somewhere near the middle of Croatia evacuated this area for reasons of Italian mentality, and we had warned them previously. Then Tito spread over that area for about four weeks and then the so-called Operation White - I, set in. Noo I beg pardon, it wasn't that operation. That came later in 1943. Then Tito with all his "Reich" exploded and the Grimitsch mountains in 10 days was in the hands of the German troops.
Q Isn't it true no matter what the partisans had done, even if they had insignia or had worn their arms properly and other prerequisites, according to your own satisfaction you never would have regarded them as conquered and treated them as prisoners of war, when captured?
A Concerning this subject I believe I have repeatedly stated on direct examination, and we thought at the time, we could de jure not regard these partisans organizations as compatible with International Law. If the Commander in Chief Southeast, as of the beginning of the year 1943 was in favor of a recognition, at least, to a certain extent, then he did it, as I have already stated, for three reasons of expedience.
And out of a feeling of responsibility to put his nauseating struggle, on a more human basis in the interest of our own troops and in the interest of the long-suffering population of the southeast.
Q You recognized the Cetniks who worked for you as legal partisans, even though they did not satisfy the pre-requisites; did you not?
A That is not correctly put, we did not recognize the Cetniks as legal, but those people and those groups as far as they organized themselves we commissioned with the maintenance of law and order. They were the groups and people who were prepared to do this in the interest of their own people. I might compare them with a kind of auxiliary police which is formed by every occupation power as a supplement for its own means of power with which it desires to maintain law and order. If I may add something, the Pecanac Cetnicks were later transferred into the so-called Serbia State Guard, which was a proper police organization of the Serbian State.
Q And you had an opportunity to look over the directives for band warfare for Serbia in 1941, which we talked about on Friday?
A I read it thoroughly and several times.
Q Did you find anything in there which talked about the mutilation of prisoners when captured by the partisans?
A No, I did not find any such a sentence, but I don't of course know what is hidden behind the clues and titles after pages 4 and 6. I wonder if there is some hidden meaning because I believe that these pages are in contrast to the pages 1 to 4 and are only incompletely compiled here. It is just a compilation of titles, of headings and clues, in my view which of course is not a legal one. I have established that the behavior is in violation of international law, independent of what is contained in the order.
Q Did you find anything in those directives which said that German prisoners should be killed when they are captured by the partisans?
A No, I did not find anything about this in the regulation, but it did happen.
Q Those regulations only talk about the tactics of Guerilla warfare, which the partisans are to use, attacks on communication lines, etc.
?
A Partly those are pages 1 to 4 then on page 5, on the second part of page 5, we have some leadings such as securing of the Terrain, food administration, troop leaders and political leaders, discipline, distribution of work, etc. Then on page 6 in order to just pick out a few, we have Courier, the men for action,.revenge for fallen fighters, etc. These are all headings and clues, which are open to many interpreations and I believe also contain many interpretations. It is impossible that that is the whole of the regulation, it can only be an excerpt which some subordinate leader has copied in part or it may be notes by some subordinate leader or something like that.
Q These partisan directives are a good deal less clear on the subject of the treatment of prisoners than the German regulations; are they not, General Foertsch?
A Yes, I believe the basic difference is that in this piece of paper, the completeness of which I doubt, nothing is contained concerning that, but that never the less they acted in the way with has been dissolved here before. In the German regulations these matters are laid down and were acted upon.
Q Will you now turn, General Foertsch, to the Keitel directives of 16 September 1941, which is exhibit 53 in document book 2, page 67 of the English page 52 of the German. You said, I believe, that OKW sent enough copies of this order so they should immediately be distributed to subordinate units.
A Where did you say this is contained.
Q Page 52 of the German, page 67 of the English.
A Yes, alright I found page 52.
Q Did you say OKW sent enough copies of this order to be distributed to subordinate units?
A I don't believe that I said that; but I remember that during the course of this trial there was some talk about the fact that this order came out with additional copies for the subordinate commanders and that it was received at the office of the Supreme Commander Southeast in this manner.
We should be able to establish that from the original.
Q Look at the heading here, General Foertsch, under the date it say, 40 copies, 2nd copy, then on the distribution list, page 69 of the English, page 53 of the German, we have the distribution list in fourteen copies. Isn't it true that the reference to 40 copies means that OKW sent out 40 copies to all of its higher commands and only the 2nd copy was received at 12th Army Headquarters and that 12th Army Headquarters in turn made 14 new copies?
A I beg your pardon, but I don't think that is right. I am bureaucratic at least to the extent to be able to see that the distribution list which is made here was not set up by the OKW, because the OKW would never say the Commander Corps of Engineers, the Commander of Signal Communication Corps, director of War Economy Staff Southeast. I would assume that the OKW sent four or five copies to the Armed Forces Commander S.E. and they made a remark to the effect, addressed to the Commander in Chief Southeast, with additional copies for the Commander in Serbia, for the commander of Crete, maybe the Commander in Salonika, etc., but if the OKW would have wanted to make such distribution lists like this one here, that would be about the same as if the Minister for Food would set up the ration cards for one street in Munich. That would not be possible as he could not possibly have the information. I assume that this is a copy by Boehme's staff for the command immediately subordinate to this staff. I can see that from the distribution list.
Q You said that an order was binding in every respect and that a directive was not binding in its details; is that correct?
A I made a difference between order, directive and regulation.
Q Is this an order, General Foertsch; this is just a directive isn't it?
A Well, one can be of different opinions. Figure 3 would make us assume that it is a directive, because it says:
"The following directives are to be applied here." I personally was always in favor of giving proper headings to such documents, either an order for or a directive for, but I think that was not done here.
Q Look at paragraph 2, General Foertsch. "The Fuehrer now has ordered that severest means are to be employed..." Severest means that can hardly be an order because it does not define itself, that leaves a large latitude?
A No, I feel inclined, even though there is very little distinction between directives and orders, I would be included to regard it as a directive especially since the word directive is actually contained in it?
Q If this was just a directive it need not have been executed in precise detail?
AA directive also has to be carried out, but one is not absolutely bound to the wording. For instance it reads here and I believe this is what you are driving at, "As a reprisal for one German soldier's life, generally speaking, the death penalty for 50 to 100 communists must be deemed adequate."
Q General Foertsch, this is very general language. All it says is "Severest measures are to be used." It further says, "That in such a case the death penalty of 50 to 100 communists must in general be deemed appropriate." This communication need not even have to have been passed on to subordinate units?
A Of course it had to be passed on, that had nothing to do with it. There are for instance regulations, thick manuals about infantry warfare, which reached the lowliest unit and where for instance it says on page x, let us assume that the artillery observer generally speaking is where the infantry company leader is, or something to that effect, only such a regulation as the one of the 16th of September had to be passed on in the same form. For instance, it would have been wrong if the Armed Forces Commander Southeast had changed this directive into a rigid order, but of course he had to pass it on, especially since it was already received with the additional copies.
That means in plain language, don't trouble to copy it again and to add your own remarks, the order is easy for you to pass on, we already have given you copies for the subordinate units.
Q.- But you did not have enough copies for the subordinate units, you had to make some more anyway?
A.- That is what I tried to clarify. After all the Armed Forces Commander Southeast does not distribute such a directive like a newspaper to everyone interested in reading it down to every company. The distribution is always made to the next subordinate unit or to the one beyond that. For instance, in the same regulation it says distribution Corps Command 65 simultaneously for divisions, 1st to 5th copy. Boehme here adopted the same office procedure as the OKW on its own, that is he sent the directive out with enough copies so that the divisions which were subordinate to the Corps Command 65 would be supplied with the directive in the form in which the Corps Command received it.
Q.- You only got one copy, the second copy and you had to make some more?
A.- Besides I don't know what was done in this particular case, because I was not present and I am sure I would not remember it because it those affairs were a metter of a registrar not of a Chief of Staff.
Q.- General Foertsch, you were opposed to this order and yet it is written in the kind of language, in general language, which was exactly the kind of communications you hoped to receive from the OKW because they blended themselves very easily to your own interpretations and in fact circumvention.
A.- I beg your pardon, I could not follow the line of thought.
Q.- Look at paragraph 3-B of this communication. It states that the death penalty of 50 to 100 must in general be deemed appropriate; with that kind of language you could have done anything, you did not have to follow out that suggested quota and you could have prevented your subordinate units from executing the suggested quota; could you not?
A.- After all, it says here as retaliation for the life of a German soldier, generally speaking, the death penalty of 50 to 100 communist in general has to be deemed appropriate, that it has been established that retaliation has to be carried out on human lives, but there is no exact directive as to the quota.
The Armed Forces Commander Southeast did not do that either, he did not fix a quota and the concept in general corresponded, as I have repeatedly said, by taking actions in accordance with the area and in accordance with the time period. For instance, at the same time, when Boehme, Plenipotentiary Commanding General in Serbia deemed it appropriate to enforce the quota of 100 for at least a certain period, at the same time, just to give an example, in Crete no quota was fixed at all. The application of the order always depended on the meaning of the order and it depended on the will and wish of the Commander in Chief. Of course, it always depended on the situation and on the necessities which were enforced on us by the population.
Q.- General Foertsch, the quota here is indefinite, it says from 50 to 100 communists, can you explain by Boehme chose to execute at the top figure and why Field Marshal List permitted the top figure to be used?
A.- Why Boehme during a certain period of time desired to apply such a high figure. I am only in a position to estimate and I have already expressed my estimate. I believe that the incredible occurrence of Topola made him fix this quota and I assume, but I would like to emphasize that I am in no position to know, I assume that it was very important too that the population was warned, because such events arc spread very rapidly, by word of mouth. I know for instance from the documents of the prosecution that even in October, I believe it was in October, soon after the Boehme order of 10 October, a note was in a division diary to the effect that by regulation number so and so, the regulation of the plenipotentiary commanding general of the 10th of October was limited very considerably.