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.
Passing on in this sense, means I believe to order it to be passed on and I had no decision to that effect.
Q: You do not believe that in passing on an order you could be considered an accomplice within the meaning of paragraph 47?
THE PRESIDENT: Isn't that a matter for the Tribunal to finally decide Mr. Fenstermacher?
BE MR. FENSTERMACHER:
Q: I believe it is Your Honor. I am simply interested in the witnesses opinion but I will withdraw the question. Do you know, General Foertsch, of any German General who was ever tried for refusing to execute an order on the grounds that it was an order which contemplated the commission of a crime within paragraph 47?
A: I know of no such case, I could not name one at the moment certainly not on the basis of Article 47, at least not in a case where a Hitler order is involved or an order by the OKW, on behalf of Hitler.
Q: Do you know of any German General who was ever executed for ever disobeying a Hitler or an OKW order?
A: Well, I think the Generals of 20 July 1944, Hitler plot belong into that category and perhaps a case which I do not know in its details, that is the case of General Graf Sponeck, but I am not in a position to say anything with certainty about this.
Q The generals who were executed in connection with the 20 July 1944 Putsch were not executed because they disobeyed a Hitler or OKW order, General Foertsch, they were executed because they plotted against Hitler's life, isn't that so?
A I do not know the opinion and judgment.
Q General Hoeppner disobeyed a Hitler order in 1941 while on the Russian front, did he not?
A Whether he disobeyed an order or whether he was sentenced because of alleged bad and dangerous leadership, I do not know, I am not familiar with the events.
Q You never heard it mentioned in the German Army, General Hoeppner was replaced in 1941 because he disobeyed a Hitler order?
A I have, of course heard that ho was dismissed, that he was demoted, but I do not know the inner connections, and above all do not know the actual judgment.
Q General Hoeppner was not executed until 20 July 1944 in connection with the plot against Hitler, was he?
A Yes, he was only executed after 20 July 1944.
Q General Foertsch, you knew did you not of the type of orders which General Boehme and General Bader were issuing between 1941 and 1914 concerning the execution of hostages, the rounding up of hostages, their being kept in central collecting camps and being executed from there, you knew about those, did you not?
A I knew that that happened, of course.
Q Did you ever go to you Commander in Chief and say orders should be issued by you to prevent Boehme and Bader from continuing those measures?
A No, I did not approach my commander in chief in this sense, and I have to give you the reasons for it. That would have been without any success and it would probably have achieved the contrary of what had been intended. In such a case, and I believe I have also mentioned that today, Hitler would have certainly intervened and he would not have admonished General Boehme or General Bader, but instead my commander in chief, and just because my commander in chief and I myself were of the opinion that in view of Hitler's attitude one could not achieve anything by such counter-measures, we have always attempted to create a different basis and to do the utmost to create conditions generally which would decrease reprisal measures to a minimum, and we believed, and as I still believe justly so, that one could judge the conditions by four different matters.
First of all
Q General Foertsch, I must ask you to give brief answers to my questions. You have had ample opportunity on direct examination to make all the explanations you felt necessary.
A I have given them on direct examination, and I was only going to repeat them because on cross-examination, I have been asked about the same subjects with which I dealt on direct examination, but may I ask far the liberty -- if I cannot answer the question exhaustively with a yes or no, to give my reasons for this?
Q You may if you will do it very very briefly.
A May I briefly designate the four points which I have mentioned? First of all, more troops. Secondly, change of policy. Thirdly, economic improvement, and fourth, propaganda measures, under our direction and not under Berlin. With these four measures one could have changed the basic conditions which made the reprisal measures unavoidable, and that is what we attempted to achieve.
Q Did you over go to see your commander in chief and ask that he replace either Boehme or Bader or any of the division commanders who were carrying out the reprisal measures which the documents indicate?
A No, I have never suggested any replacement for those reasons, and I did not do that for the same reasons which I mentioned previously.
Q General Foertsch, you knew, I believe that wounded partisans were being shot on occasions?
A No. I didn't know that. In two cases I read it in the documents and I was ashamed of that measure.
Q But if the wounded partisans had not been wearing an insignia why wouldn't they have been executed just the same as those who had been captured alive?
A If one presupposes that a German general is as coldhearted as you seem to think, then that would be correct, and if that is not the case which I was not, then it isn't correct.
Q You were not at headquarters when the Keitel directive of 16 September 1947 was passed on; did you ever go to Field Marshal List or any of his successors and ask that he issue an order which would in effect have nullified the Keitel directive?
A No, that was not necessary. The Keitel Directive, as we discussed it today, talked about the necessity generally. In discussions and through the non-issuance of a similar order on the part of one of my commanders in chief, it was clear to all subordinate commands that they could act according to their own knowledge and conscience. Only onece, -- I don't want to say it was interfering, but I want to say only once took the commander in chief the trouble to influence, it was General Kuntze - I believe towards the beginning of middle of November or the beginning of December 1941, add that coincided with Bader's realization that the quota of 100 was no longer appropriate.
Q Did you ever hear, General Foertsch, that hostages were being executed for retaliation for losses of German soldiers in battle with the partisans?
A I was not aware of that at the time. I read it now in the documents that at a certain time of Boehme's tenure that happened.
Q Generally speaking, General Foertsch, would you say that the reprisal measures which were ordered and which were taken in the Southeast during your tenure were necessary from a military standpoint in order to secure classification?
A Generally speaking, yes. In view of the attitude of the population.
Q I take it then you would have ordered those measures had you been a commander in chief yourself, if they were militarily necessary?
A That is the wrong assumption. I cannot tell you what I would have done if I myself had been commander in chief.
Q You would have done those things which you felt were militarily necessary, would you not?
A What I would have done if I had been commander in chief is impossible for me to say today in detail.
Q Did any of your commanders in chief do anything which you not approve of?
A That was not under discussion. I had to bow to the decisions of my commander in chief.
Q Turning now to the commando order, General Foertsch, I believe you said General Loehr added something to the Fuehrer Commando Order when he passed it down to the subordinate units.
Q Yes, I said I believe that supplements were sent out.
Q What was it again you said the supplement contained?
A I cannot state that with certainty. I said approximately that I believe I do remember it was ordered that the commando order was not to be applied to band warfare.
Q Will you look at this document, General Foertsch, NOKW 2009, which we offer as Prosecution Exhibit 594.
MR. FENSTERMACHER: Three copies for your Honors. We only have one German copy available at the moment, which I would like to hand to Dr. Rauschenbach.
Q If you will turn to the third page of that document, General Foertsch; this is a supplement dated 28 Oct 1942, to the commando order which was issued 18 October 1942. I believe a copy of the commando order is attached as the first two pages to the document which you have in your hand, Is this the supplement to which you referred?
A I would like to read it through for a moment before I make any statements.
Q Suppose we read it together.
Supplement from the Wehrmacht Commander Southeast:
The Fuehrer Order with all its implications applies to the entire area of the Wehrmacht Commander Southeast.
In the Southeast the fighting was concluded last year with the overthrow of the Jugoslav and Greek Army.
Whoever is now encountered still bearing weapons shows that he intends to continue fighting secretly with the aim of damaging the Occupation Powers, of destroying their supply bases and other objects of importance for the conduct of the war, of disrupting important supply lines, and of creating unrest.
It is finally the same method of warfare which is employed in the East in the rear area by the partisans, that is to say by the British and American Sabotage Commandos.
This warfare is hereby in clear contradiction to the Geneva International agreements.
Accordingly those who conduct this warfare - without regard to their political affiliations - are not to be regarded as members of an Armed Power. From this the appropriate conclusions are to be drawn. This not only applies to any man found carrying weapons but to the same extent to anybody proved to have supported this fight actively therefore also to anybody who is a follower of Mihailovic or is employed in his service. Voluntary surrender does not change this.
All enemy groups which appear are to be slain to the last man under all circumstances.
Only when every insurgent knows that he will in no case be able to escape with his life, can the Occupation Forces be expected to master every insurgent movement.
Everything is at stake in this struggle. There is no temporary solution. Any concepts such as "Heroism of a people that loves freedom", etc, are out of place. Most valuable German blood is at stake.
I expect every superior to see to it personally and with his entire efforts that this order is applied by the troops without exception and with brutal severity.
I shall have any violation of this investigated, and I shall call to account unrelentlessly whoever is or are responsible.
The orders issued to the Battalions are to be returned again to the Divisions and are to be destroyed. Compliance is to be reported through channels to the Wehrmacht Commander Southeast. Signed "General Loehr." Is that your initial between the signature of General Loehr, General Foertsch?
A Yes, it is.
Q Is this the supplement to which you previously referred as that which had been sent out along with the Commando order?
A That is possible because of these supplements which referred to the combating of bands.
Q Attached to the document is also a draft of this supplement, General Foertsch, on pages 5 and 6 of the document which you happen to have. Did you prepare that draft?
A (no response)
Q Did you prepare that draft, General Foertsch?
A Excuse me just one moment. I will answer it in a minute. I would not assume that I drained it personally, but I don't know it. In the normal course of events the draft was made by an expert or by the 1-A, whose initials are here to.
Q Isn't that your initial on the bottom of the draft?
A Yes, and there are three initials on there. One is the initial of the 1-A, that is between the "T" of Generaloberst, and between my own "F", that is the initial of the 1-A, who was at that time Col. von Schipp, and after the last letter of the text is one other initial, and unless I am very much mistaken that is the initial of Captain Leeb, who was Id at the time.
Q I believe you said on direct examination that almost any certain oral commands before the Commando Order was executed the commander in Chief Loehr had to be asked and that his consent had to be given, and that he hoped thereby it would prevent the practical carrying out of this order?
A Yes, and that in view of the so-called commando units. Those were members of the regular belligerents, and this supplement here concerns mainly the guerilla warfare. That does not actually apply to the commandos. It says here, "In the Southeast area the fighting was concluded with the overthrow of the Yugoslav and Greek Army. Whoever is now encountered still bearing weapons shows that he intends to continue fighting secretly with the aim of damaging the occupation forces.
Q You don't believe, General Foertsch, that this supplement refers to the Commando, Order at all?
A I do not remember the supplements in this particular form. Reading them now I realize even more clearly what I mentioned just now, as only remembering it, that is the fact that the application of the order against commandos, i.e. regular soldiers, was to be prevented by the oral supplement. This supplement, the way it is laid down here and signed by General Loehr, does not talk of any commandos. It refers on the whole only to the insurgents.
Q The commando order is attached as the first two pages of the supplement, the signature of Hitler at the end of the commando order is at the top of the very page upon which the supplement begins.
A Yes, that is correct.
Q General Foertsch -----
A I am only surprised to see here that in the supplements there is only talk about commandos in a different context. It says here, "it is finally the same fighting method." That means band warfare is the same fighting method as it was applied by the partisans in the rear areas in the east, that is to say, by the British and the American sabotage commandos.
Q General Foertsch, what would the Fuehrer order possibly have meant by the first paragraph of this supplement?
A There is no doubt about it, that these are supplements to the order which was previously given here.
Q Now, look at the paragraph --
A But the supplements concern themselves actually with the insurgents -- they compare the method of warfare of the insurgents with the eastern partisans and with the British and American sabotage commandos, and it says further here, "this warfare," meaning band warfare, "is in clear contradiction to the Geneva International agreement".
Q General Foertsch, the fighting of the partisans has nothing to do with the Geneva convention; the Geneva convention concerned the treatment of prisoners of war of a belligerent power after capture and never were the partisans considered to come within the scope of the Geneva convention; the reference here to the Geneva convention can only mean commandos, isn't that so?
A I don't know whether the Geneva convention only concerns the treatment of prisoners of war. I don't think so, but I don't know it. Wasn't the Geneva convention a supplement to the Hague Regulation of land warfare? This was my opinion up to now, and I believe that is the way it is meant here.
Q General Foertsch, will you look at the paragraph beginning on the top of page 4 of the document, which you have, the second page of the English, your Honors:
"All enemy groups which appear are to be slain to the last man under all circumstances."
Doesn't that language tie in precisely with the commando order which ties in with the first two pages of that document also with the regulations Hitler gave in the commando order which has been in evidence in document book 9 to which your attention was called by Dr. Rauschenbach?
A Yes, but if one talks about all enemy groups, which it says here, then that has to be understood in connection with the previous passage which talks about Mihajlovic.
Q General Foertsch, you have the commando in front of you, it is the first two pages of that document, the order of 18 October 1942. Now, will you turn to document book 9, exhibit 225? This is on page 28 of the English and page 41 of the German, your Honors.
A May I just read this order, the commando order? Yes, the two first pages of the document contain the order to which exhibit 225 in document book 9 refers to. There is no doubt about it.
Q Now look, General, Foertsch, on page 34 of the German in document book 9; do you find the paragraph beginning; "If the German war effort is not to suffer severe damages?"
A Yes, I found it. Thank you.
Q Look at the second sentence in that paragraph, or rather the third. "It can under no conditions be permitted that a demolition, sabotage or terrorist unit simply surrenders and is taken prisoner to be treated according to the rules of the General convention; consequently they are to be exterminated in every case without exception."
The subsequent paragraph:
"The report which shall appear about this in the armed forces bulletin will contain very briefly and laconically, that's sabotage.