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.
terrorist or demolition unit has been caught and exterminated to the last man."
Now look at the supplement at the top of page 4 of the document which you have in your hands:
"All enemy groups which appear are to be slain to the last man under all circumstances."
Have you any doubt that the supplement here is connected with the commando order of 18 October 1942, and that the units involved refer to the commando units of the British and American Armed forces?
A There can be no doubt that pages 3 and 4 contain the supplement from the Armed Forces Commander Southeast to the commando order. The supplements deal with the band while the commando order, that is pages 1 and 2, only talk, as far as I could gather up to now, about the commando troops. I know that the oral supplement which I mentioned was sent out with regard to the commando units, that is regular belligerents. During my time, as far as I remember and I don't believe I am mistaken there, the Hitler order was not in practice in the Southeast.
Q General Foertsch, you talked in your direct examination about certain oral commands, which General Loehr gave indicating that subordinate commanders before they executed the commando order would have to first apply to him and gain his opinion. Do you believe that Loehr believed in doing that the practical execution of this order would be effective?
A Yes, it had been said very briefly, make inquiries of previous files. It was intended to intervene in a specific case or to contemplate what could be done.
Q Now look at the last two paragraph of this supplement:
"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 relentlessly whoever is or are responsible."
Do you believe that looks as if Loehr wanted to give his approval first before the order is to be executed?
A It is possible, but I may be mistaken, that this oral supplement was issued after the order had been issued. What I mean is after the order had already been passed on in writing. It is possible that a wish or request, or an amendment existed at that time. I am not in a position to say so exactly.
Q Look, General Foertsch, at the language of Hitler regarding the reasons for the commands in the document book, page 45 of the German, page 29 of the English:
"I therefore expect that the commanders of the armies subordinated to you, as well as the individual unit commanders do not understand the necessity of this action, but also that they do their utmost toward the execution of this order."
A Yes, these are words which were generally used if one wanted to give special emphasis to an order in view of the fact that such an order could never be kept secret, especially since certain penalties existed and possibly since this was an OKW report the treatment of the bands had to be treated in a public manner. Besides the command was already publicized before the order was actually sent out.
Q Now compare the language of General Loehr regarding the execution of the order. He states that it is to be applied by the troops without exception and with brutual severity. The language of the supplement is much more harsh than even the language of Hitler, is it not General Foertsch; were you responsible for the drafting of this language, General Foertsch?
A The language seems a little harsh, yes.
Q My second question; are you responsible for its drafting?
A There is no such thing as a responsibility for a draft, there is only a responsibility for a communication which is actually signed and sent out. Now the supplements were actually created, who was the first person to find the right words, I cannot say.
I have already said previously that in the normal course of events the expert makes the first draft and then it is passed on to other hands, amendments and deletions are made occasionally and the person who signs the order makes the final decision as to its version.
Q: After the expert drafted this supplement, General Foertsch, he gave it to you to look over did he not?
A: Yes, possibly, certainly.
Q: And you initialed it indicating that you approved of the language; did you not?
A: In most cases the procedure is that the draft is finished and then submitted to the person who is to execute it. Then the draft is sent back for final typing up, then it is typed up in the same way as the final draft reads and all those persons sign it who cooperated in the drafting. This was done here, the experts signed it, 1-A, 1-D and I signed as chief. If one wants to ascertain who was the author of specific words contained in the draft, then one would have to look at the first hand written draft and one could then see what was corrected deleted, and altogether how it was amended.
Q: The last paragraph of this supplement, General Foertsch, states that: "The order issued to the Battalions are to be returned again to the Divisions and are to be destroyed." Do you know why it was desired to destroy this supplement?
A: That was done with many top secret matters and especially down there in the southeast where such matters, mainly because of the band warfare, could very easily get in the hands of the enemy. On a normal front, in a normal theater of war, the staffs are in the rear, but in an area of band warfare, the staff is exposed to attack in the same way any company. It was frequently ordered because of these prevailing conditions, that only some such top secret matters should be put in the files and not all of them.
Q: Orders of a tactical or strategic nature, General Foertsch; you did not have to be afraid if the enemy captured an order of this nature, it has no war plans; why were you afraid of this order being captured by the enemy?
Case VII, Court V.
A: It should be obvious because I said on direct examination that this order was somewhat unusual for us. One does not like to pass top secret orders on to the lowest units. I believe they never went down as far as companies, stopping at battalions during the normal procedure, but I may be mistaken.
Q: General Foertsch, if a British or American commando while in a British or American uniform were captured while carrying out an operation, he would have had to be executed in conformity with this order and this supplement upon capture by the German troops; would he not?
A: No, it was intended by Hitler that these commando units -- I don't know whether it is expressed here -- were to be slain during combat action.
Q: And if somehow they were not slain in combat, then they were to be executed after their interrogation but in any event they should be executed not later than that?
A: It was the intention of the Hitler order not to capture, not to make prisoners of such commando units, that is clear from the wording.
Q: Suppose a British or American commando offered to surrender, would the German troops have had to accept that surrender?
A: Yes, probably. I know of one case in the southeast, but that was after my tenure down there.
Q: We are not interested, General Foertsch, if you don't know about that.
A: I only wanted to give a practical example.
Q: I am not interested in your example, General Foertsch.
A: I wanted to give an example as a proof of how the procedure was down there. Actually, I think it would be very interesting. For instance, we expected a commando operation down there in Rhodes and the commander in Rhodes made inquiry in accordance with this oral order, which said to make inquiries previously.
He inquired what should be done if this commando operation would actually take place. He got the answer to treat it as a normal enemy attack and the same was in fact done on the occasion of an operation against an Island off the Balmation Coast where this enemy unit was made prisoner and treated in a completely normal manner, although we found out later, that this unit was a commando unit.
Q: To do that, General Foertsch, was to disobey this order and this supplement; was it not?
A: Yes, it meant that in the two cases just mentioned the so-called Hitler Commando order was not adhered to.
Q: How was it possible to disobey a Hitler order?
A: It was possible in an individual case as the ones mentioned because after all Hitler was in no position to come and check how every individual procedure had been carried out. I don't know, but I believe that these people were not even reported as commando prisoners, they were captured and treated as prisoners of war and that was the end of it. It was not a case of a refusal to execute a Hitler order, it was merely a non-execution in one particular instance.
Q: General Foertsch, according to this order a commando who was captured wearing civilian clothes would have had to be executed without a trial; would he not?
A: That would have been the intention, I believe.
Q: And of course even a spy is entitled to a trial before execution, is he not?
A: A spy, certainly, but that is something quite different
Q: Even under this order, General Foertsch a British or American captured wearing full uniform would have been executed either in combat or after combat if captured; would he not?
A: That was Hitler's idea, yes.
Q: I believe I asked you earlier whether you considered the commando order to be an illegal order of not?
A: Yes, I have already said that as far as I remember...
THE PRESIDENT: This has been commented on before, is it necessary to go into it again?
BY MR. FENSTERMACHER:
Q: Perhaps I had better vary it, Your Honor, and ask regarding this particular supplement. Do you consider this supplement, General Foertsch, to be in violation of international law as you understand it?
A: No, because the supplements actually refer to the band warfare and because an oral supplement followed saying that an inquiry had to be made in the event of a commando operations.
Q: Did you ever hear of a great deal of commando activities while you were chief of staff in the southeast?
A: We experienced one commando operation, that was in the summer of 1942. It was directed against the airbase, I believe it is called Iraklion on Crete. This affair ended and no members of the commando were captured. It was obvious that the inhabitants had participated in the operation. Neither the Armed Forces Commander Southeast nor any army commanders carried out the investigations, but it was carried out by the Armed Forces Commander South, that was Kesselring. He was in charge of the investigation because the objective was an airbase. In the subsequent period we frequently received messages to the effect that so-called commando units, battalions etc., were in Cyprus and Africa so that one had to count on suck operations and Hitler anticipated them. But apart from the ones I previously mentioned, I do not know of any commando landings from the sea which were carried out.
Q: You did not anticipate any commando operations prior to the spring of 1944?
A: Yes, I have just said we had to anticipate them all the time because commando units were in Cyprus and in Egypt and Africa. It was reported to us that they were there, but as far as I remember such operations did not take plane in actual fact, with the exception of this one operation on the Dalmatian Island and later the incident in Rhodes, which I mentioned.
Q Were commandos to be treated in accordance with the Commando Order in the supplement that had been captured, General Foertsch?
A No.
Q Will you look at this document, General Foertsch?
MR. FENSTERMACHER: This is NOKW-1785, your Honors, which we offer as Prosecution Exhibit 595.
Q This, General Foertsch, appears to be an order dated 14 January 1943 concerning the 22nd Infantry Division which at that time I believe was operating on the Island of Crete. Is that correct?
A Yes, that is correct.
Q It reads: "Increased activity by British Commandos and Paratroop units to be expected shortly, especially against outposts, installations and islands. They have to be destroyed ruthlessly according to the orders issued.
"Such attackes have to be reported most speedily to the Division and to the Commander of Fortress Crete. All communication centers have to forward such reports immediately in the clear which have priority over all other communications."
"They have to be destroyed ruthlessly according to the orders issued" -- to which orders are referred there, if you know, General Foertsch?
A I don't know that. This is an order of the 22nd Infantry Division which I did not command.
Q Did you pass on the Commando Order and the Supplement to the 22nd Division on Crete?
A I have to assume that the 22nd Division received that order; in which form I don't know.
Q General Foertsch, did I understand your direct examination correctly to the effect that Croatia was an independent state and that German troops and commanders there had no influence on the activities of the Croatian government?
A I don't believe that I expressed it in that way. I said, I believed in connection with the question of the executive power that in contrast to other areas Croatian authorities were also consulted in the question of executive powers and Croatian members were added to the staffs of the German authorities.
Q Isn't it true that General Lueters, when he was commander of German troops in Croatia, had full executive power in the areas in which German troops were operating?
A I don't believe that he had it for the full period and for the whole area. I believe it was arranged so that for certain operations he had executive powers but not in general.
Q Didn't the commander of German troops in Croatia, after August 1943, have executive power in Croatia?
AAfter August 1943? Do you mean whether it was arranged after the Commander in Chief Southeast had been appointed?
Q I am referring to a statement to that effect in the Cortilieri report which has been introduced in Exhibit 336.
A No, after August 1943 the German commanders in Croatia had no executive powers. It could be delegated to them, as I have already said, for certain areas and for certain periods of time.
Q Do you believe that with German troops and Italian troops present in Croatia there could have been a so-called independent government of Croatia?
A Yes, that did exist.
Q You have talked, General Foertsch, about the use of Ustasha units and I believe you said that they were responsible for a good many of the excesses which we were committed in the Southeast.
A Yes, that is correct.
Q Is it true that on occasions German troops fought side by side with Ustasha units and that Ustasha units were subordinate to the command of German Divisional Commanders?
A It is certain that they did fight together on occasions. Whether Ustasha units were subordinate to a German Commander, I would not be able to assert with certainty.