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.
If they were subordinate that was only a subordination with respect to tactical matters; that is, they were subordinated for certain tactical aims; but concerning jurisdiction, personnel matters or disciplinary matters or concerning the appointment or dismissal of commanders, they were not subordinate to German command.
Q Did the subordination exist during the time the Ustasha units carried out operations?
A That is possible.
Q You have talked also, General Foertsch, about SS units in the Southeast.
A Yes.
Q Is it your opinion that SS units were more responsible for excesses in the Southeast than were German army units?
A I could not express it in this way. For instance, the SS Division, Prince Eugen, which consisted mainly of members of the Southeastern area, Volksdeutsche, and other people of that kind, was certainly more inclined towards excesses than a German Wehrmacht unit. That cannot be doubted.
Q Look at Document Book XIX, General Foertsch, at Exhibit 228, on page 52 of the English and page 65 of the German. This refers to a conference of the Chiefs of Staff which was held at Salonika on October 1942.
A Yes, I have got it.
Q I presume, you presided over that conference.
A That is not certain but it might have been a conference of that kind; but it might also have been a conference between just the chiefs -- that is in small circle. I don't know that any more now.
Q Do you know the statement: "If the division seem to have a pro-Serbian attitude, the SS will offer an example." Did you mean the Prinz Eugen Division by any chance?
A No, I could not have meant the Prinz Eugen Division by this. You mean the next sentence? "The SS will offer example" -- whether that means the SS Division Prinz Eugen? I don't know that because this sentence does not express our opinion. It was the opinion of the OKW. It is possible, that the "Prinz Eugen Division" was meant.
Q Did you endorse that opinion of the OKW to the fact that the SS troops would furnish an example for the army units?
A No, on the contrary, I have already said and have already pointed out that the Commander in Chief Southeast continuously asked for better troops and for reinforcements. However, he did not get them. Instead the SS again and again set up their own formations. I personally did not welcome the creation of new SS divisions, especially divisions created from the area itself. I considered it a very unfortunate measure.
Q You talked also in your direct examination, General Foertsch, about excesses committed by the Bulgarian occupation troops.
A No, I don't believe that I was understood correctly. I talked -- rather. I was asked by my defense counsel whether I knew how the Bulgarians thought about reprisal measures and measures of that kind. In answer I said that the Bulgarians in our occupation area that is mainly in Serbia -- were bound to our orders and directives. However, in their own area of supremacy they frequent applied more vigorous measures and I was then asked for an example. I named an example which took place in Croatia somewhere near the city of Drama.
Q There can be no doubt, General Foertsch, that the Bulgarian units in the German occupied areas were completely subordinated to German commanders, can there?
DR. RAUSCHENBACH: I have to point out an error in translation in the previous answer. There was some talk about the harsh measures of the Bulgarians in Thrace not in Croatia.
A The Bulgarians were subordinate just the same as the Ustashas which I previously mentioned, only to a tactical extent. There was no disciplinary or judicial influence.
The administration of the area occupied by the Bulgarians had remained German. There were German administrative sub-area headquarters and German district headquarters but Bulgarian units.
THE PRESIDENT: We will take our afternoon recess at this time.
THE MARSHAL: The court is in recess until three-fifteen.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
BY MR. FENTERMACHER:
Q General Foertsch, regarding the Bulgarian occupation troops, stationed in the German occupation areas of the southeast, there can be no doubt that the Bulgarians were not permitted to take any reprisal measures without first securing the approval of the German Commanders there; is that correct?
A Yes, that is how it was ordered, but I do not know whether in individual cases Bulgarian troops committed excesses.
Q You also spoke, General Foertsch, about measures taken by the Italina occupation troops. Is it your opinion that the Italina measures were more severe, or less severe than the German measures?
A I cannot give a clear judgment about this, because the Italian measures in general and above all the Italina orders were not known to me. That might have varied.
Q Did you ever hear protests from the Italians to the effect that German measures were too severe?
A I cannot remember anything about that. I also would not know why the Italians should protest against measures in German occupied territory, but it is possible that such protests were made.
Q If you will look at this document, General Foertsch, NOKW 1887, which is offered as Prosecution's Exhibit 596, this is an exchange of communications between the Italina 11th Army Headquarters and the German 1st Mtn Division. You will note on the first page the reference concerning "shooting of bandits." A new Fuehrer order is at hand, which will be transmitted. Bandits taken in battle are to be shot. Other bandit suspects, etc, are to be arrested and evacuated for the "Sauckel labor service." That is from the German General Staff to the Italina 11th Army Headquarters, dated in August 1943.
A Excuse me, but I read something rather different here. Here it states that bandits fighting are to be shot.
This means those who are found during the fighting to be bandits, and other bandit suspects are to be captured and to be evacuated for the "Sauckel" labor service.
Q Will you look at the next communication, General Foertsch, the German Chief of the General Staff, with 11th Italina Army.
"The division has complied with the orders for mopping-up operations on the large area with reference to the Fuehrer order according to which bandit territories are to be combed most severely and the male population is to be shot and/or seized in entirety and evacuated. The Commanding General is raising an objection to the Division order, forbidding these measures, and refers to his sovereign rights".
The reference there is to the Italina Commanding General is it not, General Foertsch?
A Yes, probably.
Q Now will you turn to page 5 of your document, page 3 of the English, your Honors. This is a teletype from the 11th Army Headquarters, "Affair of Reprisal measures and Internment of Greek nationals brought to the attention of the Supreme Command.
Whilst awaiting a decision, all subordinate units have to regard the orders of my radio telephone message of 19 July, and my circular of 5 August."
This is signed, "General Vecciarelli". Do you know who he was, General Foertsch?
A Yes, he was the Commander-in-Chief of the 11th Italina army.
Q Now will you look at the last communication, on page 5 of your document? This is a teletype from the 11th Italina Army, to the 26th Corps, dated 18 August, 1943:
"There are no scruples against mopping-up actions of the German mountain division in the Igumenitsa-Yoannina-Prevesa area with the support of the 2nd Alpini Valle Group. I am not in agreement with the aim of the operation and give the strictest orders that the male population from 18-50 years capable of bearing arms is not to be evacuated.
but that the mopping-up action may only be for the purpose of looking for arms and ammunition of the bandits, destroying the bandits themselves and their ration dumps, to arrest actual and basically suspicious elements or those who are carrying out activity inimical to the Axis. I further order that the mopping-up action must be ended by 1 Aug 43 in order to guarantee the assembly of the troops for further contemplated actions in the area of Pindozu."
This is signed, "Commanding General of the 11th Army."
Did this protest of the Italian Commander ever reach you, General Foertsch?
A No, it was not sent to us. The last-mentioned teletype went to the 26th Corps. This corps had the supreme rights in the area of the 1st Mtn Division.
Q Did the first German Mountain Division ever report that the Italian Commander was against the methods which the German Division proposed to use?
A I don't know. The 1st Mountain Division was subordinate probably to the Commander of Salonika and Agean administratively and therefore it would have reported first of all to his office, but whether the commander then reported further to the Commander-in-Chief southeast, I cannot say. It is possible.
Q General Foertsch, you also spoke in your direct examination about knowing nothing regarding activities taken against the Jews in Greece, - at least prior to 1943, - is that correct?
A I said that this one report, I think in July or August, 1941, came to my knowledge, It ran approximately "Rosenberg Einsatz staff, has started Jewish operations in Salonika", or something like that, and I cannot remember anything about the fact that before '43, any kind of measures were taken against the Jews in Greece, with regard to deportation, etc., but I also stated that during the first 6 months of 1943, it became known to me by personal observation that the Jews in in Salonika, were driven into a special part of the town and were marked.
I was asked to make the field police and gendarmerie available to help in this action. I forbade this in my area, i.e. for my staff.
Q Now regarding the Jews in Yugoslavia, you knew of the Jew and Gypsy camp at Semlin, did you not?
A. I knew from reports that Jews and Gypsies and other suspected, persons, and persons who were suspected of sympathizing with the bandits were collected.
Q. Did you believe that the Jews and Gypsies were all in one camp all by themselves at Semlin, or did you believe that there were other partisan suspects there as well?
A. With regard to the distribution into the various camps, I did not think at all, because this was an affair within the sphere of Commander of Serbia.
Q. Was it within the sphere of the 12th Army after June, 1942, General Foertsch?
A. I didn't understand. Oh, Serbia, yes, Serbia belonged to the sphere of the Wehrmacht Commander Southeast, yes.
Q. When you received about the Jewish Camp in Semlin. Didn't you wish to investigate to determine whether Jews were being segregated there by themselves?
A. No, I don't think that I had this idea. At any rate I do not remember.
Q. I also want to ask you, General Foertsch, about asking the peoples in the occupied countries to work on fortifications. Do you recall that?
A. In this special case, it was a question of work on the security installations of the railroad.
Q. Were these peoples in the occupied countries oaid whenever they did work for the German Army?
A. Yes, if they worked for the German Wehrmacht they were paid, or they were compensated some way in food, which they preferred to have rather than the money. For instance, for working on air fields.
Q. Will you look at this document, General Foertsch, NOKW 1800, which is offered as Prosecution's Exhibit 597?
A. Yes.
Q. This is an order of the 22nd Infantry Division dated 10 February, 1943. This division was on Crete at that time, was it not, General Foertsch?
A. Yes.
It was subordinate to the Commandant of Crete, and the Commandant of Crete was subordinate at this time, - Crete was still subordinate to the Commander Greece, and the Commander Southern Greece as subordinate to the Commander Southeast, because I think it was directly subordinate to the Wehrmacht Commander Southeast.
Q Look at Division Order No. 8, paragraph 2 of this order, concerning Labor employment of the Greek population:
"Labor employment of the Greek population Since part of the unit still has mistaken concept concerning the employment of the Greek population for labor Commandant Fortress Crete has repealed the following orders which had been issued heretofore concerning this matter.
1.) As a matter of basic principle the troops are not to employ: forces regularly employed by the District Headquarters for Wehrmacht work. These forces are not affected by the directive below.
2.) Sphere of duties for the commitment of the local population:
a) Reconstruction into fortresses of Localities in which troops arc billeted.
b) Road maintenance ..................
4.) Employment of the local population without regard to profession, age and sex.
5.) No remuneration for labor. The work is to be carried our within the demands made by the occupying power.
6.) The execution of the work demanded by the occupying power (local troop commander) is in the first place the affair of the civilian local authorities. The unit demands from the community that for instance a fortress wall between the houses or a connecting trench, embrasures, fox-holes etc is to be constructed in locations designated by the troops or that a certain assigned length of road is to be kept in repair.
It is the affair of the community to fulfill this demand. For the time being it is not desirable to employ German soldiers for guard duty.
Should the community not fulfill the demands due to negligence or bad will within the time limit set, then District Headquarters are to enforce fulfillment of the demand with all the means at the disposal of the Occupying Power. Communities who acquire particular merit in this additional labor employment are to be reported to District Headquarters for any possible benefit (distribution of rations, exemption from levies)'.. It is signed, "Mueller".
Did you receive information either of this order itself, or of its contents, as Chief-of-Staff, General Foertsch?
A. The order itself, I almost certainly did not see. Whether, and how far I was acquainted with the fundamental side of such requested labor, I do not know at the moment, but it was probably so as the division ordered here, that the communities were given certain commissions, and these communities handed them on.
Q. You will note here in paragraph 5, General Focrtsch, there is to be no remuneration for labor. Did you ever have -
A. Yes, for this work, not for this community, and work of the communities, but the other labor forces which, as is probably meant up here in figure (1), they were paid. That I know exactly because this question of payment in money or food has been discussed very frequently.
Q. The labor referred to, General Foertsch, is labor tacks mentioned in paragraph 6, is it not? the building of connecting trenches, and foxholes, and fortress walls?
A. I assume so, because it is down here in the order.
Q. Did you believe that it was permissible to ask occupied peoples to construct trenches on behalf of the German army?
A. I think, or perhaps I should say I know -- correction, I don't know the regulations about this, but I believe that in a modern war, such a measure is not unusual.