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?
MR. FENSTERMACHER: Your Honor, we are now at the point of military necessity for these measures. The defendant, as I understand it, maintains that these measures were in fact, warranted from a military standpoint, and the question which I am asking him now, concerns orders and reports of which he had knowledge, which said, in effect, that these measures, were not militarily necessary, because they are in fact, militarily senseless and stupid, and having the wrong results.
It seems to me that that type of interrogation, without going through each step of the document books, is a little more expeditious than just going through it document by document.
JUDGE CARTER: It seems to me that if he issued some order that had that effect, that he could be asked about it, and interrogated about it and the reasons given about it, and we would get somewhere, but just to talk generally about what he thought about this order, or thought about that order, what Boehme thought or Boehme did, or someone else did. I cannot see the reason for it, except taking up a lot of time.
MR. FENSTERMACHER: Do you suggest your Honor that I take him through each order which he issued, and which were passed on, and ask whether he considers it a military necessity or not?
JUDGE CARTER: No, I do not suggest that, but I do think that we ought to get down to the issues of the case. That is what I am trying to gob you to do and make them specific, so that we know something about what the contentions are.
BY MR. FENSTERMACHER:
Q General Foertsch, were you never of the opinion that the revolt in the occupied countries could not be broken by the measures which you were using?
A The measure -- the success of a measure, can only really and properly be judged afterwards. Before, in war, one never knows with certainty whether an intention or a measure will be successful.
The suggestions which I made to my commander-in-chief, were, in my opinion, the correct ones at that time, because, otherwise, I would not have made them.
Q Did you recommend the passing on of the Keitel directive of 16 September to your commander-in-chief?
A No, when the Keitel directive from the 16 of September arrived, I was not present, and when I came back it had already been passed on.
Q Did you recommend to General Kuntze the issuance of his order of 19 March, 1942, which recommended the ratio of 100 to 1 in the event of a death of a German soldier?
A I would like to state in regard to this, that this order as you have just asserted, did not contain the ratio of 100 to 1. This order, had for its content, quite different things, and just in addition, it stated "for instance" and it is labled "might" about this figure of 100; and secondly, such orders do not arise by the fact that the Chief-of-Staff suddenly felt, "Let us make an order", and then he sits down and thinks for a couple of hours, or two days he goes to the commander-in-chief and says, "General, now let's issue a strict order", or, "We must issue this order", but the whole thing develops, and they develop from necessities and opportunities.
The order of the 19th of March, is based on many factors. First of all, there were quite clear reports, that at the latest, by the end of March, an insurrection my Mihajlovic was planned.
Q General Foertsch, I asked you, and I wanted you to be brief -
A Yes, I want to be brief, Mr. Prosecutor, but if I am attacked for a long time then I must take a long time answering, because I am here in the witness stand on my own behalf, and I have the duty before Germany, before myself and before my family to speak the truth and to speak what I think is correct.
DR. RAUSCHENBACH: Your Honor, this witness has just been asked about the order from the 19th of March in such a general form, and conditions have been told him in connection with this order, namely that he gave the suggestion for this order, that this cannot be answered in one sentence, and I think you must agree with this.
He must either answer this in detail, or the sentence must be struck out.
THE PRESIDENT: I do not understand that there is any objection pending, except on behalf of the prosecutor. It is quite apparent that the witness is able to take care of himself.
You may proceed.
BY MR. FENSTERMACHER:
Q I simply asked you General Foertsch, whether you recommended the issuance, by General Kuntze, of his order of 19th March, 1942?
A In the last analysis, yes, but with this yes, the question is not exhausted or rather more important, the answer to the question is not exhausted. I have sworn not to hide anything.
Q General Foertsch, as chief-of-staff you had a duty not to obey orders which you considered illegal, did you not?
A This presupposes that the consciousness of an illegal, -or let's not say illegal, - but as it is stated in the paragraph 47 of the military Penal Code, "that I have the consciousness that such an order is an offense, or a crime is intended", and I also stated this in direct examination. In my whole time as chief-of-staff, I never had, for one single minute, the consciousness that I had proposed an order which had a crime, or an offense as its aim; otherwise. I would not have suggested such an order.
Q Do you believe that you never issued or passed on, as chiefof-staff, an order which you considered to be illegal, during the period you were in the southeast?
A I stress once again, as chief-of-staff, I never issued orders, and secondly I stress, that the term, "illegal" I cannot recognize, this in connection, but that is a question of the consciousness that such an order intended a crime or an offense.
Whether such an order, such an illegal order, or such a criminal order, had been recognized or passed on by me, the Tribunal will rule about this.
This is what the trial is about. I cannot decide that. I can only say that what I felt, and what I know, and what I now feel, if I could decide this question, Mr. Prosecutor, then the problem would be very simple. I could go home today.
Q I simply asked your opinion, General Foertsch.
Were you ever --
A I have stated it.
Q Were you of the opinion that the Kuntze' order of 19 March 1942, which you passed down, as chief-of-staff, to the subordinate units, was an illegal order?
I am asking for your opinion regarding that order.
A In is my opinion now, and it was my opinion then, that the order of the 10 March, 1942, was no offense, and had as its aim no offense and no crime.
Q Were you of the opinion that the Keitel order of 28 September, 1941 which talked about the arresting of Nationalists, Democrats, Communists, Jews as hostages, which you passed on to subordinate units, was an illegal order?
A I was of the opinion that this order could be applied legally.
Q Were you at the staff at headquarters when the List order of 5 September 1942 was issued and passed on to subordinate units?
A I was chief of staff, but I was on leave, and had no influence at all on this order. I also did not see it until my return from leave.
Q Were you of the opinion that the Commando order of 18 October, 1942, which you passed on to subordinate units was an illegal order?
A. About this, too, I have given detailed statements on direct examination, namely that the unusual character of this order was known to my Commander-in-chief as well as to me. Of the fact that it amounted a crime or an offense we were aware but rather we considered that the order was caused by actions on the other side which in our feelings were not legal, either.
Q . You passed on a Hitler order of July 1943 stating that partisans should no longer be executed but treated as PW's and sent to the Reich for labor in mines, -- were you of the opinion that that order was an illegal order?
A. No, and I would like to add that in the end it didn't matter at all what my opinion was. I could have had the most strange views and such orders would nevertheless have been passed on and carried out.
Q. You passed on an order of the Commander-in-Chief Southeast of the 22nd of December, 1943, which repealed the existing hostage quota but which did not prohibit future reprisal measures. Were you of the opinion that that order was an illegal order?
A I was never of the view that that was an illegal order. That is, I stress that the term "illegal order" cannot claim as my own and I would point out to my frequent emphasis in connection with the orders which have been asked me about in the last half on hour.
Q. You were familiar with certain orders of General Boehme and General Bader's, namely of the 10th of October, 1941, for General Boehme and of the 13th of October, 1941, for General Bader in which he orders the execution of hostages at the ratio of 100 to one. You were informed of those orders, were you not, General Foertsch?
A. The Bader order with the ratio of 100 to one isn't known to me. I would like to see it. I don't think that such an order exists.
Q. Do you recall the Bader order stating that 2100 persons should be shot in reprisal for the 21 members of the 521st Signal Regiment killed near Topola?
A. That was a Boehme order or, as far as I remember, it was an immediate direct intervention by the OKW.
It was never ordered by Bader.
Q. I am asking you whether you were informed of that Boehme order?
A. I don't know. I was informed about the incident. I was informed as far as I can remember. I think at least I was. I was informed about the direct intervention of the OKW which stated that in this case the ratio of one to 100 must be applied and I was informed through the report from Boehme to my Commander-in-Chief that a shooting in that ratio was on progress. That is how the report ran.
Q. Why do you believe that OKW intervened directly in the case of the 21 German soldiers killed near Topola? That was quite irregular, was it not?
A. I don't know. I don't know who thought that up in the OKW. I can only make an assumption.
Q. In view of the Keitel directive of 16 September, 1941, it wasn't necessary for OKW to intervene, was it?
A. No. If I tried to put myself in the OKW's shoes, which amounts to a hypothesis, then I can imagine that Hitler or somebody in the OKW had said, "Well here, we want to order ourselves because the stubborn Wehrmacht Commander Southeast probably won't do it even in this case either," but that is only an assumption.
Q. General Foertsch, you were familiar as chief of staff, with the reports which came in to Southeast headquarters indicating that hostages had been executed at ratios of 50 to 1 and later of 100 to 1. Did you ever recommend to either of your Commanders-in-Chief that he take steps to prevent his subordinate commanders from executing partisans or hostages or civilians at those ratios?
A. I don't remember any such special case. The Commanders-in-Chief and I certainly talked about these ratios and about these reprisal measures repeatedly and if I have still clear perception of the trends of thought at that time, then it was like this. To order subordinate units, "now every reprisal measure will stop" would in a short time have led to an intervention from above, and to an immediate termination of a sensible Commander-in-Chief and his exchange by a savage man but on the other hand to apply directly to above was the same thing as failure.
Anyone who knew the mentality of Hitler or even had a little bit of imagination about it, knew that in such things I would like to say, by reason of comparison, could not storm up the front steps of a house and run into the front door with one's head but one had to go through the side entrance if one wanted to achieve anything. And that is what we did. And that is what we did over and over again, and not entirely without success.
Q. How do you answer my question, General Foertsch? I asked whether you ever recommended to your Commanders-in-Chief that they issue orders to their subordinate commanders to step executing hostages at ratios of 50 to 1 and 100 to 1?
A. This question cannot be answered by a simple yes or no because this question as it is put today was not put at that time but I would certainly comply a little more with your request when I state the following Fundamentally and frequently I advised my Commander-in-Chief that no fixed ratios should be ordered but that I should be left to those agencies which alone could see what was going on in the area and at the time and knew what was expedient and necessary. The word "left to them" should not be taken to mean that this was to passing on to the lower units but it must be interpreted to the effect, that the Wehrmacht Commander Southeast could not always see what was going on and that in those offices of the Commander there sat old generals who were adult had at least the same consciousness of responsibility as my Commander-in-Chief had but had greater experience in the application in individual cases.
THE PRESIDENT: We will adjourn at this time until one- thirty.
THE MARSHAL: The Tribunal will be in recess until one-thirty.
(A recess was taken until 1330 hours )
AFTERNOON SESSION
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed, Mr. Fenstermacher.
BY MR. FENSTERMACHER:
Q: Your Honor. General Foertsch, you passed on the Keitel order of 15 September 1943, which said that Italian officers who resisted disarmament by German units should be shot; did you not?
A: The order actually read differently. In my opinion it said the Italian units which resisted had to be given an ultimatum which expressed that the commanders responsible for the resistance should be shot after court martial procedure unless during a certain period they disisted from resisting. This order was passed on.
Q: That order of 15 September 1943; was it your opinion that was a legal or an illegal order?
A: I was of the opinion that this order, was examined in accordance with international law before it was sent to us.
Q: Did you believe that it was a legal order?
A: I believed that this order was in order concerning its legality, judging from the preceding events.
Q: General Foertsch, if you had believed that any of the orders which you passed on were illegal you would have had a duty not to pass them on; would you not?
A: My own belief did not play any part. Even if I had believed that an order was in contradiction to international law, that order would have been passed on in spite of my opinion, passed on independent of my opinion.
Q: You are familiar with paragraph 47 of the German penal code, General Foertsch?
A: To the extent that a legal layman and a soldier could be familiar with it, I am familiar with it.
Q: Do you not believe that under paragraph 47 you had a duty to disobey illegal orders?
A: Article 47 expresses certain things and twice on direct examination I have testified as to that, but I am prepared to repeat it. Article 47 pre-supposes that the person against which it is used is aware of the fact that by the order which he may possibly reject an offense or a crime is intended. Therefore, he has to be aware of the criminal intent of such an order.
Q: If you had been aware of the criminal intent of the orders which you had passed on, would you not have had a duty not to pass on those orders?
A: I would have had the duty to point out my opinion to my Commander in Chief, if then he would have ignored my opinion I would have had the duty to pass on and work on the order even against my own better knowledge.
Q: Paragraph 47, General Foertsch, states that the subordinate who obeys an illegal order is liable to punishment as an accessory in the event that he was aware of the illegality of the order?
A: No, that is not the way it road. Article 47 does not talk about illegality, it talks about offenses and crimes. I do not remember the actual wording; but I an quite sure about the meaning.
Q: Don't you believe that an illegal order is an order which contemplates the commission of a crime?
A: Intends. The expression 'illegal order' is wrong. I cannot recognize this expression as the basis of a discussion. If one discussed a legal question then one would have to name the actual wording of the paragraph exactly.
Q: What would you call an order which contemplates the commission of a crime; would you call that a legal order or an illegal order or neither?
A: I would designate it as an order that intends and contemplates a crime.
Q: If you believed that if any of the orders which you passed on contemplated the commission of a crime you would have had a duty to disobey those orders and not pass them on; would you not?
A: I said had I been aware of the fact that such an order contemplated and intended a crime than I would not have been permitted to execute the order. I, however, was not the executor of the order in any case, but only the advisor. I would have bad the duty to inform my commander in chief of this my opinion.
Q: In passing on an order which you considered contemplated the commission of a crime, General Foertsch, you would have in effect been obeying that order; would you not?
A: I have said I would have had to report to my commanderin-chief my own opinion. If my commander in chief would then say, "You are wrong, you are mistaken and I tell you this order is to be passed on, "then I would have had the possibility of either accepting this directive of the commander in chief or to answer him by asking to be relieved.
Q: A chief of staff obeys an order by passing it on; does he not General Foertsch?
A: No, not necessarily. Obeying means executing.
Q: When you pass on an order do you not execute the act of passing it on?
A : Well, I think then we have to kind of fix the term of passing on. I don't want to compare myself with the postman, but if a postman delivers a letter in which there is some talk about a crime, then he is made an accomplice, or if an editor perhaps disseminates news which has some sort of a criminal basis then he is not necessarily an accomplice either.