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.
THE PRESIDENT: Pardon me. This comment the witness is now making was prompted by an inquiry as to what went through the minds of List and Boehme. With all due respect to the witness, I do not believe in the first place the question is proper cross-examination because the witness does not know and did not know then what was in the minds of these two men and it does not necessitate a long dissertation. Nay I suggest we endeavor to restrict it to matters which are purely and plainly crossexamination.
MR. FENSTERMACHER: General Foertsch, do you agree that all that has been ordered here is that severe measures are to be used?
THE WITNESS: I beg your pardon, I did not get that.
MR. FENSTERMACHER: Do you agree that the only thing that was ordered here by the OKW is that severest measures are to be applied to achieve pacification?
THE WITNESS: Do you mean generally speaking or in this particular decree?
MR. FENSTERMACHER: I mean in this particular communication from OKW.
THE WITNESS: What the OKW ordered here on 16 September is contained in the wording here.
BY MR. FENSTERMACHER:
Q.- All that has been ordered by the OKW here is that severest measures, whatever that may mean, are to be applied in the achieving of the pacification of the Southeast.
A.- Yes, that is what it says here among other things, but other matters are contained as well.
Q.- General Foertsch, isn't the language of this communication so general and does it not give the individual commander so much latitude that it is precisely the kind of communication you wished for, because it could be easily circumvented?
A.- No, the whole tenor of this directive and the whole attitude of the OKW, which I personally was aware of and which I had experienced when I reported orally to Keitel, left no doubt open as to the fact that the OKW expected strict adherence to this directive, otherwise Keitel would not have said to me, "Everything has been ordered and you will find it all after your return," Furthermore, he said; "Tell your Commander in Chief, who made some comments in a teletype concerning responsibility, tell him his responsibility is to obey."
THE PRESIDENT: We will take our morning recess at this time.
THE MARSHAL: The court is in recess until 11:15 o'clock.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY MR FENSTERMACHER:
Q. General Foertsch, do you agree that executions at a ration of even 1 to 1 would have been in compliance with the Keitel directive of 16 September 1941?
A. The directives of the 16th or the 9th speak expressly about higher figures. If Hitler or Keitel had wanted the ratio of 1 to 1 then they wouldn't have issued this order.
Q. General Foertsch, you arc aware, no doubt, that executions at a ratio of 50 to 1 took place even prior to the Keitel directive.
A. That's possible but, of course, I can't recall the reprisal measures prior to this period.
Q. We will look at Document Book 2, Exhibit 30 at page 5 of the English and page 11 of the German. I geg your pardon -- that is the wrong reference, General Foertsch. I mean Document Book I, Exhibit 26, page 87 of the English and page 67 of the German. This is an SD report and you will note that on 25 July 1941 in Belgrade an unidentified Jew threw a bottle of gasoline at a German motor vehicle and a 16 year old Serbian girl was arrested and admitted she was incited to the deed by a Jew. In reprisal 100 Jews were shot to death in Belgrade on 29 July 1941.
A. Yes, but this doesn't concern one single case. At least it doesn't of necessity concern one single case.
Q. General Foertsch, where the culprit was known and in spite of that you executed a hundred Jews. I understood you to say that you only took reprisal measures when the perpetrator was unknown.
A. Excuse me -- I didn't order a hundred Jews to be shot. That I want to establish first of all. Secondly, I think that in this case on the 29th July these hundred people were not reprisal victims for the one case which is stated in the sentence immediately preceding; and, thirdly, an SD report, in my opinion, is not such a flawless report as a troop report. One should therefore see all the reports before the 29th of July in order to find out what happened previously and, in addition, in order to make a final judgment, one must have the order which fixes this reprisal measure.
DR. RAUSCHENBACH (Counsel for defendant Foertsch): Your Honors, the Prosecution have submitted that this was a case in which the perpetrator was known. This isn't the case, according to this document. The document runs: "On the 25th of the 4th of 1941 a Jew unidentified up to now threw a bottle of gasoline and escaped"; that is, he remained unknown and on the same day there were three further cases where unknown perpetrators had thrown bombs at a German vehicle. In only one case, the last case, the perpetrator, a woman, was caught.
Q. If that SD report is unknown to you, General Foertsch, suppose you turn to Document Book II, page 83 in the English and page 67 of the German.
MR. FENSTERMACHER: Page 83 in the English, Your Honors.
Q. This is a report from the Commander in Serbia to the Wehrmacht. Commander Southeast concerning the same incident and your initial appears on this report. You must have known of this case.
A. Yes, I know about this case and I initialed the report but in this case, too, it states on the same day further attempts of this type and it states one perpetrator, a woman, so that if it stated the perpetrators then it must be more than one.
Q. Well, then, suppose you turn to Document Book V, Exhibit 427, page 37 in English and page 39 in the German. There is a report from the Commander in Serbia of the 4th of September 1941 to the Wehrmacht Commander Southeast, and you will note in reprisal for the soldier killed in the open street in Belgrade on 3 September 50 Communists were executed. This is a ratio of 50 to 1 even before the Keitel directive of 16 September, is it not, General Foertsch?
A. Yes, that seems to be correct.
Q. Then you will recall the Lomscha attack which took place, I believe, in August 1941.
A. Yes, General Ronca, yes.
Q. And during that attack one person was killed and 52 Jews and Communists were executed in reprisal.
A. I think one killed and one wounded but I can't say with certainty.
Q. Turn to Document Book I, Exhibit 22, page 76 of the English and page 55 of the German. This is an SD report on the Ronca incident and it talks about an attempted attack on the life of the German General Ronca and states that 52 Communists, Jews, and families of band members were shot to death on the 20th of July 1941.
A. Yes.
Q. You know about these executions at ratios of 50 to 1 or, in this case, 52 to one, even prior to the Keitel directive, did you not?
A. As far as it was reported, I knew about it but I also knew that a fixed reprisal ration had not been ordered. If the Commanders in Serbia or other agencies which had ordered these reprisals and used 50 here then I must assume that there had been a special reason for this because at the same time other reprisals in other circumstances were undertaken.
Oct-20-M-MJ-9-1-Stewart (Evand)
Q. Do I understand you to say, General Foertsch, that you took reprisal measures only if the perpetrators remained unknown; is that correct?
A. I said that my theory was and is that reprisal measures should only be taken if the perpetrator was not caught, but I can imagine cases, theoretically, in which an addition to the culprits, reprisal is also thought to be necessary, because from the interrogation it might have been seen that behind this man, the culprit, there was a quite definite group, let's say, of accomplices. There were some kind of circumstances, special circumstance, and as I said, this is a theoretical assumption.
Q. Let's not be theoretical. Let's look at an actual case in Document Book 9, Exhibit 237, at page 124 of the English, and page 130 of the German. This is an activity report of the 704th Infantry Division, and you will note here on the 24th of December, 1942, an incident is reported in which Lt. Koenig, and a Dr. Englehart were fired on in Mladenovac by a 20-year old woman. They were wounded. A former Chetnik leader was also shot to death by the woman while trying to arrest her. Later, she shot herself, but in spite of the fact that the perpetrator was not only known but actually caught, the division applied for authority to shoot to death 50 hostages, and you will note on the next page, page 125 of the English and page 130 of the German that 49 men and one woman were in fact shot to death in reprisal for the attack, and later on, in the same entry, you will note that the division applies for authorization to shoot an additional 25 hostages.
Did you ever hear of an event like that, General Foertsch?
A. This incident in Mladenovac on Christmas Eve 1942 became known only afterwards, because I only came back on the 31st of December, after an official trip under short leave. As I have seen from the documents here I discussed this incident in Mladenovac with General Geitner, who can say something about this here. I, myself, am not in a position to make any statements on this, because I do not remember the brief conversation I had with General Geitner about this, any more.
Q. Do you believe that this is an exception--
A. But I still remember this from the conversation, that something special occurred here.
Q. Do you believe that this is an exceptional incident, General Foertsch, or one that happened quite regularly?
A. I would say I think this was an exception.
Q. General Foertsch, what did you expect to accomplish by these severe reprisal measures? Did you expect to deter the population from making future attacks on your troops and installations?
A. I have also spoken quite a lot, about this, also in the witness stand here; reprisal measures served the purpose of preventing the population from continuing and repeating illegal actions.
Q. General Foertsch, reports did come into your headquarters practically every month between 1941 and 1944, from subordinate units, which told you and your commanders in chief, that these severe reprisal measures were in fact increasing the resistance of the occupied peoples. Did you pay no attention to those reports?
A. Excuse me, on the contrary, this is quite the wrong interpretation. It was mostly reported in the reviews and the surveys of the situation for a longer period, and it also could be assumed from the facts that the reprisal measures had a definite success. Even if the whole thing was not pleasant, and I would like to ask especially that my statements are not interpreted in such a way that we relished this kind of success, but relative calm in the winter of 1941-1942 in Serbia, the almost complete calm from the winter of 1941 until 1942, for a whole year, in northern Greece, and from the later period, what we had intercepted about Mihajlovic's reactions--I cannot remember the date, -- showed clearly that the reprisal measures in themselves, achieved their purpose.
Q. General Foertsch, there are a few reports which were sent to you at headquarters; one in July 1941, from the Wehrmacht Liaison office, said that it was doubtful whether the shooting to death would prevent a repetition of the attacks, and that in fact, the reprisal measures made people desperate and drove them into the hands of the insurgents.
A. Yes, I know the report.
Q. Do you know the report of von Bischofshausen, re Kragujevac in October 1941, in which he opposed mass executions and stated that resistance would only be increased by these methods?
A. Bischofshausen's report I know from the document, but I did not know it at that time. With regard to these matters, I can say the following: First of all, the Wehrmacht Liaison office, was an installation, - which was not authorized to form competent opinions. The real judgment could only be taken by those officers who were responsible for their areas, and the second thing was, --I am sorry, what was the second tiling there? I have forgotten it for the moment.
Q. You mean the second part of the Wehrmacht Liaison report?
A. No, you pointed out a second thing to me.
Q. You explained that you never heard of the Bischofshausen report.
A. Yes, Bischofshausen, yes, I would like to say the following about this. From the documents, I now got the impression, and I have already said this in my direct examination, that if things happened the way as is stated here in the prosecution documents, then this was an irresponsible action by this Battalion Commander which I would never approve, and that type of responsibility would lead, of course, to undesirable results.
Q. You are familiar, are you not, General Foertsch, with the language used in certain of the Boehma orders, and later of Bader's orders, stating that the arbitrary increase of hostages must cease because it was having the effect of driving the population into the hands of the insurgents?
JUDGE CARTER: Mr. Fenstermacher, I wonder if I might ask you a question? This indictment which we have charges four different counts. You have offered in evidence a lot of reports and excerpts from diaries, and orders of commanders, that might apply not only to General List and General Kuntze, and General Weichs, but evidently you feel that they apply also to this defendant in his capacity as Chief of Staff to those three Field Marshals or generals.
From the course of your cross-examination I cannot toll what your theory is. What is the defendant charged with? What actually had ho done that you charge criminal acts? Is he charged with responsibility for everything that occurred in the Southeast? Is ho charged generally If so, on what theory? If it is on any other theory, I would like to have you state what it is. I would like to know what we are driving at here.
MR. FENSTERMACHER: Our theory, Your Honor, is that this man as Chief of Staff was a very powerful and influential person. He persuaded his commanders-in-chief, and made recommendations to them,--recommendations which were followed, - in his capacity as chief-of-staff, he also passed on certain orders which we maintain arc illegal; and ho was responsible for the execution of those orders by the subordinate units in the field.
He was responsible too, for his commanders-in-chief, as to whether those orders were in fact being executed. We charge him with knowledge that the measures which he was recommending to his commanders-in-chief were in fact, boomeranging, and of no deterrent effect at all upon the occupied peoples, and the question which I am now asking, is as to his information and knowledge that these measures which he was recommending, were not in fact deterring the occupied people from committing attacks on German troops and installations.
We further charge him in the words of Control Council Law No. 10, with being a participant and an accomplice and an accessory to these acts of his commanders-in-chief.
JUDGE CARTER: That brings on a second question.
Why don't we limit the cross-examination to these particular acts that he has done, or is alleged to have done? And if ho did the reason why he did it.
It seems we are just wandering around discussing the orders that Boehme issued, that came to his attention, or that he issued, and now the point is, why shouldn't we be more specific in the cross-examination?