Q. Are you familiar with the Hague regulations on this point, General Foertsch?
A. No, I am not certain.
Q. General Foertsch, you were asked some questions regarding the duties of General Felber, and you were asked certain questions regarding his subordination to Field Marshal Weichs, and on the other hand, questions regarding his independence from Field Marshal Weichs. We will turn to your Document Book 4, and to exhibit 351, page 89 of the English, page 65 of the German. This you will recall, General Foertsch, refers to the command authority in the Southeastern area as of 30 November 1943. You will note now on page 92 of the English, page 67 of the German, that General Felber was subordinate to Field Marshal Weichs, in all questions of security. That Spears from paragraph 2-e.
A. Yes.
Q. And you will note also that all security units are subordinate to the commander-in-chief, that is Field Marshal Weichs, in the territories in which they are stationed; that is in paragraph 4-c. And now, if you will turn to page 71 in the German, page 97 of the English, you will note that the commander-in-chief, that is Field Marshal Weichs, -- has command authority over civilian offices, as well as over non Wehrmacht units in the Southeast area.
Is it your opinion, General Foertsch --
A. Excuse me, the last thing is not quite clean to me. Where does it say anything about civilian population?
Q. Civilian offices, I meant, General Foertsch. It is on page 71 of the German, and page 97 of the English, paragraph 3. The Commander-inchief Southeast, ---
A. Yes, but with that restriction "within the scope of the coastal defense."
Q. General Foertsch---
A That is, of importance is laid on this point, I shall point out this matter by giving an example.
Q I am more concerned with the subordination of General Felber regarding security.
A Yes.
Q Is it your opinion, General Foertsoh, that reprisal measures are matters of security?
A Reprisal measures, as such, belong in my view, not immediately in the sphere of securing the country, but they can have some effect on the securing of the country.
Q Do you recall, General Foertsch, General Felber's testimony to the effect that he, General Felber, considered security-withdrawn. Do you recall General Felber's testimony to the effect that reprisal measures were matters of security?
A Yes, I know that Felber said something rather in the sense of that, but I also know that this testimony of his is very problematical, shall we say. I tried to illustrate this very complicated question by one example in my direct examination.
Q Do you agree or disagree with General Felber's conclusion?
A No. At any rate, in regard, -- or since it was such a long time ago, that I heard Felber, I do not want to be so brief about it.
If Felber says that the reprisal measures are an affair of the security of the country, insofar as they fall under the responsibility of Weichs, then I do not agree with him, but I think that reprisal measures are the result of executive power, and until August, 1943, this lay with the Commander-in-Chief Southeast, or the subordinate commander, and after the appointment of Weichs, with the Military Commander Southeast.
Q Is it your opinion, General Foertsch, that reprisal measures should be taken in order to secure and protect the German troops stationed in a particular occupied area?
A Reprisal measures have the aim of deterring the population from continuing their illegal actions. The fact that this indirectly also has some effect on the troops is clear because if the illegal acts stop, then the troops are safer as if the illegal actions were continued.
Q In order that you might not misjudge General Felber I should like to read one answer to the very last question which he was asked. This is on page 1867 of the English Transcript for the 13th of August, 1947, of the pertinent questions.
Witness, as a last question I would merely like to ask you whether the so-called reprisal or retaliation measures were a securing, or if you like, security measure?
A This question I answer in the affirmative."
Would you have answered that question in the negative, General Foertsch?
A I would have answered it as I have just answered, that reprisal measures after all have an effect on the security of the troops, but should not be taken with the aim of security. I think here one must differentiate between "aim" and "effect". If I can give a very simple example, -- The weather has no purpose with regard to a tactical measure but it has an effect on the tactical measure.
Q Would you say, General Foertsch that reprisal measures are matters or combat and of tactics, or rather matters of administration?
A There is no doubt that on principle, it is not a tactical question, but as I said, a result of executive power.
Q Are you acquainted with the order of General Loehr, which is dated July, 1943, in which he states that reprisal measures are not -
A The 10th of August, 1943.
Q Thank you, the 10th of August, 1943, in the first paragraph of which he states, "Reprisal measures are not of combat, -- and not of administration?
A Yes.
Q Do you agree or disagree with General Loehr.
A In answer to the question, by my defense counsel, in direct examination, I explained the meaning of this introductory paragraph, The reprisal measures were to a competency of the commanding general, and of the police officer or of the government official.
Q That was a definitely defined paragraph laid down for acute reasons?
A If I remember correctly, the immediate cause was an incident which happened somewhere in the sphere of Salonika, but I may be mistaken, in any event, this definition at that time, had an acute, practical meaning, and it was not something merely theoretical.
Q Two last questions, General Foertsch. You spoke in your direct examination, about hostages being executed in Berlin in 1945, or perhaps you said you heard that the execution of hostages at that ratio was ordered about at that time. May, I believe you said, in 1945?
A I stated expressly that I know, an announcement of the Berlin magistrate, and then my defense counsel asked me afterwards, "Do you know whether these measures wore carried out?" whereupon I said, "No, I hope that it was not necessary because the population was sensible enough to take the warning, "and I think I added "I hope they are sensible enough not to give the Commanders in Chief there as much troubles as my commander had at the time in the Southeast."
Q Did you see the announcement to which you refer?
A I read it in an official news bulletin of Berlin.
Q Do you know who signed the announcement and when it was dated?
A I think it was Hay 1945, but I am rather uncertain about the date, and it was signed or announced by some kind of a German Magistrate's Office, not directly by the Russian commander in chief. He is clever enough to push the German magistrates to the fore, but there can be no doubt that the German Berlin magistrate, who certainly had no authority over any kind of armed forces, certainly couldn't order it himself.
Q Did you learn about that announcement in a German newspaper, General Foertsch?
A No, I certainly read it, if I am not wrong, in a copy of this official newspaper, or bulletin, and I had that paper in my hands.
Q Who put out that official news bulletin? What was its title?
A I can't say exactly. It was kind of a compilation of official announcements of the City of Berlin, some sort of an official gazette. For instance, it talked about the distribution of food for the next period, and there was something about the opening of schools and other administrative matters.
Q How many pages did this bulletin contain that you saw?
A I can't say. At any rate it had more than two pages.
Q How did it come to your attention? Were you a subscriber or was it delivered to you?
A I got it from one of my comrades. I think he had it sent to him.
Q Do you know the name of the comrade?
A If I am not mistaken it was General Kuntze, but I could be mistaken.
Q If you would try and identify it a little more accurately, GeneraL Foertsch, perhaps we could make a search for it.
A I think probably one of the defense counsel have a copy of it. If I am not mistaken Dr. Laternser mentioned it in his opening statement and I assume he has a copy of it.
MR. FENSTERMACHER: We will wait then for Dr. Laternser to introduce it into evidence.
Q One final question, General Foertsch, you mentioned something about paragraph 44 of the Italian and American treaty of capitulation, and I believe you stated that that paragraph opened the door for the execution of hostages and the taking of reprisal measures by American troops in case the Italians didn't behave; is that correct?
A No, I did never express it like that I said, -- I must establish the following first of all, the connection was the question of my defense counsel as to whether I believed that the necessity for reprisals was independent from the strength of the occupation troops, whereupon I answered something like "reprisals are a consequence of the attitude of the population, and are independent from the strength of the occupation troops, although the strength of the occupation troops has naturally an indirect influence on the behavior of the population," and then I was asked how I arrived at this rather strange assumption, whereupon I answered something like "this was a consideration by me which was supported by two examples outside the Southeast area." I mentioned the example of Berlin, which you have just mentioned, and then I said something like "I believe that also the Commander in Chief of the Allied Forces in Italy was acting on such thoughts when he concluded the treaty with Badoglio at the end of September, and included the following in the concluding paragraph: that if action is taken against this treaty then the Allied Supreme Authority reserve to themselves the right to take certain measures, for example further occupation of other territories and punishments such as punishment actions by the air force, or other measures." I think that is how I expressed myself.
Q Would you look at paragraph 44 of the document to which you refer, General Foertsch, -- paragraph 44 reads, "The present instrument may be denounced by the United Nations with immediate effect if the Italian obligations thereunder are not fulfilled, or as an alternative the United Nations may penalize contravention of it by measures appropriate to the circumstances such as the extension of the areas of military occupation on air or other punitive action." Is there anything in this order about the execution of hostages, General Focrtsch, rather in this paragraph?
A No.
Q Is there anything in this paragraph about the burning of villages?
A No. This could possibly occur in connection with actions of the air force. We have experienced that, but I have never maintained that there is any mention here about the killing of hostages, but I have only maintained that reprisals are independent from the strength of the troops and in this context I worked on the idea that punitive action by the air force especially when punishment is being talked about, is a kind of reprisal. But I would be rather pleased to be convinced of the contrary.
Q Did you over hear, General Foertsch, about the execution of hostages by either the American of the British armies?
A No, I never hoard this. I only heard recently hero that Dr. Laternser asked to be allowed to look at certain documents which announced something similar, but of course I did not quite grasp what it was all about because of the speed of talk.
Q But other than that you have never heard anything about the execution of hostages by the British or the Americans?
A In that direct sense, no, but I don't know whether there is a largo difference between the killing of people who have previously been warned that their countrymen arc to be taken and used as reprisal, and the air attacks of a modern war which are unavoidable, because they are a part of the war and which kill people who have not been warned beforehand.
Q You believe then that the execution of hostages is as unavoidable as the death of persons in an air raid?
A The killing of reprisal hostages is unavoidable if the population do not come to their senses in any other way, but in this case the individuals are so to speak "counted", that is for the attack and for the operation so and so, so and so many people will be shot in reprisal. In the other case, in the case of an air raid the commander in chief, even one whom has the greatest feeling of responsibility, cannot tell how many people will fall victims to the order which he gives. Both, I believe, are unavoidable in modern warfare and the words apply which I used in my direct examination. "Modern and total war once started, follows but its own laws".
A Of course, there are very many differences.
MR. FENSTERMACHER: I have no further questions, Your Honor.
REDIRECT EXAMINATION BY DR. RAUCHENBACH:
Q Witness, first of all few questions which are more to serve the purpose of correctness and to bring out points which don't quite come out in the translation, or questions which perhaps you didn't understand correctly. At the beginning of cross-examination in a connection which is no longer interesting here, you were asked whether you knew what had happened to Himmler, what had happened to Goering, Ribbontrop, etc. and then you said with regard to Ribbontrop, Keitel, etc. that also Goering had been killed, and so that it is correct in the record, I assume that you missed this in your answer, didn't you hear that Goering had committed suicide?
A Yes, of course.
Q And then you were repeatedly asked something on the following lines: what would you have done to combat the bands if there had been no orders of the OKW in existence, -- that is hypothetical question. And you gave you opinion on it, now a factual question about this -- could you order anything at all if the OKW hadn't given the respective order -
I mean you yourself?
A I personally, no, I have repeatedly stated that here, and I repeat it that outside of my staff I had no authority to command.
Q And then in further cross-examination you were asked again and again hypothetical questions, why wore thus and thus measures taken, and what sort of measures would you have taken, etc. i.e. you yourself, and then you stated your opinion about it, and now I have the following question; in your answer did you make it a pre-condition that all the participants would understand your answer correctly, -- you did not want to say that you yourself would have been able to take those kind of measures?
A Since these questions were hypothetically put, of course, I assumed that the answers would be hypothetically understood, and I believe that in most cases I always stated at the beginning that I, of course, was not authorized to take such measures.
Q: and then you were asked repeatedly about the so-called directives for the combating of bands. And then, by these questions and answers, the impression could arise as if you yourself were immediately concerned with this. Therefore, I would like to ask you the following question: Did you issue the directions?
A: No.
Q: And did you pass on these regulations to the offices subordinated to your commander in Chief?
A: No.
Q: The Prosecutor then asked you the following in connection with those directions for the combating of bands, and also in connection with other OKW orders, about the possibility of circumventing orders or using play which was given in the formulation of the orders. Could the Commander in Chief Southeast or even you with regard to an order of the OKW or a distributed regulation of this kind influence the troops to circumvent this or to interpret it in such a way that in practice the very contrary was done?
A: No he was not authorized to do this.
Q: The directions of the Community Party of Serbia about band warfare were also submitted to you. And you yourself read the paragraph from it which spoke about revenge for fallen comrades. How did you think about this when you saw these Communist regulations for the first time for combating the bands?
A: I can't say with certainly, but I think that I understood it as being rather free.
Q: And free in which respect?
A: In the treatment of German soldiers and then as it practically happened later on.
Q: and how did it happen practically?
A: By shooting to death, mistreatment, mutilation, and similar things,
Q: Witness, and then in the further course of the crossexamination you were asked about the following: You knew that Bulgaria, and I think another State was mentioned, was forced to join the so-called Anti-Comintern Pact of the Axis, as it was staged. And you answered without thinking about it more, "Yes". And then you went on to say that you hoard about it on the radio and read it in the newspapers. Did you mean by that that you read in the newspapers and heard on the radio that these states were forced to join it?
A: I meant, of course only the joining in this connection I said that the judgment of all these political measures was not possible for me because I had no basis for judging it, and, therefore, I could not.
Q: And now, with regard to the Commando Order. You said that the Commando Order seemed unusual to you and to your Commander in Chief, but as it referred in many respects for things contrary to International Law on the part of the enemy, it was partly justified. That is the same which you have already said in direct examination?
A: Yes.
Q: And now was this order so important that the Commander in Chief in this case had already thought about it himself, how it should be passed on, in which form, or was it like this that the Commander in Chief was only concerned with the passing on of this order and the supplement to it when the accompanying letter had already been drawn up?
A: The Commander in Chief himself thought about the whole matter because it was just this accompanying letter which is sated of the same day and which went to him personally, so that he had read this accompanying letter before any others of the staff.
And it was exactly General Loehr who was one of those man with whom I myself in all spheres always had the feeling as if when one came with something or other to present to him, he had already thought all about it. Loehr was a ponderer, if I may put it this way.
Q: And then with regard to the Commando Order itself. In Cross-examination you wore asked whether you regarded this order as illegal or whether by reason of Paragraph 47 of the German Military Penal Code you should have objected against this order. And now I read you Figure 6 of this order from the original: In case this order is not carried out I will call all commanders and officers to account by way of summary court martial. Those who have not carried out their duty and instructed their troops about this order or who in its execution act against this order will be brought to account." Therefore, it is a clear direction from Hitler himself for the case of non-execution of this order. On the contrary, the commanders responsible will be sentenced by summary court martial. And in this situation was it at all possible that those who carried out this order would be made responsible in the sense of Paragraph 47 of the German Military Penal Code?
A: In my opinion, no. And principally in the views of General Loehr, not at all. Otherwise he wouldn't have done what he did.
Q: And then with regard to General Loehr's order, dated 26th of October 1942, which hero in the original has some connection with the Commando Order itself. You said in crossexamination that this order of the 28th of October was obviously concerned with band warfare and not with the destruction of so-called Commando units. I now read you the following paragraph again from it. This is the 6th paragraph in the printed document:
Therefore, in accordance with this the fighters, it doesn't matter which political party they belong to, cannot be regarded as members of an armed power. Therefore, the corresponding consequences were to be drawn from this. This doesn't only concern the man who is caught with his weapon in his hand, but also these about whom it can be proved that they actually supported this fight. That is, every man who belongs to Mihajlovic forces or serves him. Voluntary surrender changes nothing. All enemy groups which appear are to be crushed down to the very last man. Only when every insurgent know; that in no case cap he escape with his life can it be expected that the occupation troops will master every insurrection movement." Witness, what do these paragraphs have to do at all with Commandos, that is with parachuted or landed allied soldiers?
A: Nothing at all. That's what I tried to make clear in my answers, but obviously I didn't fully succeed. At any rate, in answer to your question, I can only reply that they had nothing at all to do with them.
Q: Witness, in this order of the 28th of October 1942 was there anything at all which had any connection with the Commando Order?
A: No, I didn't find anything, at any rate, nothing inner.
Q: And then could you give some explanation for why General Loehr has passed on the Commando Order with this rather strange supplement?
A: That can only be understood from the situation itself which I tried to explain in direct examination when the commando order was discussed, from the dilemma and from the trend of thoughts which existed at that time, I don't think I need to repeat it again.
Q: In the Prosecution documents did you find anything at att for the fact that this Commando Order, which was directed against Allied soldiers, was actually carried out at all in any way in the Southeast?
A: I haven't seen one single document, but in direct examination I said already that the Prosecution documents support my statement when I say that it was not carried out.
Q: Is it not strange that if the order was passed on it wasn't carried out? What was the reason for that?
A: This depended on the oral supplement which was already mentioned and probably also the fact that large numbers of the troops probably didn't know the Commando Order at all. That's my inner conviction.
THE PRESIDENT; Dr. Rauschenbach, we will adjourn at this time and reconvene tomorrow morning at 9:30.
(The Tribunal adjourned at 1630)
Official Transcript of Military Tribunal V, Case VII in the matter of the United States of America against Wilhelm List et al, defendants, sitting at Nurnberg, Germany, on 21 October 1947, 0930 hours, Judge Burke presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Honorable, The Judges of Military Tribunal V.
Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if all the defendants are present in the Courtroom?
THE MARSHAL: May it please Your Honors, all the defendants are present in the Courtroom except von Weichs, who is still in the hospital.
THE PRESIDENT: Judge Burke will preside at this session.
You may proceed.
DR. FRITSCH: (Fritsch for Rendulic) Your Honor, I ask that the defendant Rendulic may be excused from the Court for this afternoon and for tomorrow morning in order to prepare his case.
JUDGE BURKE: Very well. That may be done.
HERMANN FOERTSCH REDIRECT EXAMINATION (continued) BY DR. RAUSCHENBACH:
Q Witness, before the recess yesterday evening I had asked you a few questions connected with the cross-examination and concerning the order, which together with the Commando Order, was issued by General Loehr on the 29th October 1942, and in answer to my last question you confirmed that in this whole order from Loehr dated 28 October there was no mention at all about the treatment of commando units, but it only talked about band warfare, but that nevertheless, it was rather strange that such an accompanying letter was sent with the commando order. Therefore, I have the following question -- it is with refer ence to your testimony that General Loehr gave in addition an oral supplementary order to the commando order; what was the contents of this oral supplementary order?
A In brief: "before any carrying-out, make inquiries."
Q And do you know of any case in the Southeast in which the Commando Order was actually carried out?
A No.
Q Witness, the prosecution submitted an order by the 22nd Infantry Division in the cross-examination, and in Figure I of this order there is talk about the fact that some strengthened activity on the part of English commando and parachute troops was to be expected; and then the Division went on to say that according to the orders given, they are to be ruthlessly destroyed, I have the following question: at that time did you know, or do you know now from the Prosecution documents about any evidence for the fact that this order of the 22nd Infantry Division was carried out in any case whatsoever?
A No, as far as I know on Crete, after the case already mentioned in the middle of June, no commando operation took place.
Q Witness, can you give some explanation as to why the supplementary order mentioned by you, this oral supplementary order by General Loehr, was only given orally and not in writing?
A Issuance in writing of such an obstructive supplement would have brought General Loehr before a court martial, and would probably have meant death for him.
Q Witness, and then you were asked by the Prosecution whether the civilian population put to work in the Balkans were paid for their work, and you answered this question in the affirmative. Thereupon the Divisional Order No. 3 of the 22nd Infantry Division, dated the 10 of February 1942, was submitted to you. In this order there is mention of the extension of the fortifications made by the troops and of the repair maintenance of roads. Then under Figure 5 it states there are no wages paid for the work, the work must be carried out in accordance with the demands made by the occupation power; and in Figure I it states "On principle nothing is to be assigned from the troops except those workers who have a fixed assignment with the sub-area administrative headquarters for Wehrmacht work, and these workers are not affected at all by the provisions which follow."
Witness, in view of these two figures, can you tell us which are the workers concerned here, who are paid or fed, and which are the workers who, according to Figure 5 here, are not paid?
A In the first case they are individual recruits and workers who are engaged and who are paid individually, and in the second case they are workers hired by the communities by which payment of the individual worker is not carried out by the Wehrmacht offices, but in my opinion therefore comes within the scope of the occupation expenses.
Q And you were also asked by the Prosecution in which way you advised your Commander in Chief, -- first of all a preliminary question, was it your job to give your Commander in Chief legal advice?
A No.
Q Who did that?
A The Army or the Army Group Judge did this, and I had no influence at all on this.
Q And was he not subordinate to your disciplinary authority on the staff?
A Y-es, in purely military disciplinary questions, yes, but the regulations or the manual for the General Staff Service provides expressly that the Chief of Staff has no influence at all on the submissions of the judicial officials, but only in special cases are they to be instructed by him after the decision of the Commander in Chief.
Q Now, did you have the possibility, apart from the legal sphere, of advising your Commander and Chief freely, that is to suggest everything which you thought would possible be correct?
A Free advice was without doubt given in questions of tactical employment, operational planning and various organizational questions, but its limit in all spheres was in the orders which came from the superior office, that is from the OKW to the Army group.
Q And then also during the cross-examination there was talk about the so-called Rosenberg action, Jewish action. What was this all about, it wasn't very clear; was that a measure against the Jews personally, a deportation and extermination, or was it another task of this Rosenberg staff?
A I think I stated this very clearly. With regard to Rosenberg, this was only a so-called idealogical research, that is archives, files and similar documents. It had nothing to do with the personal fate of the Jews.
Q And in cross-examination General Kuntze's order from the 19 March was also mentioned, about the reprisal measures; after this order were the reprisal ratios increased?
A I can only repeat, no.
Q And did this order contain anything new at all?
A With regard to the reprisal measures, no.
Q My final question, witness. You were asked by the Prosecution "Are you of the opinion that the reprisal measures in general were necessary?" and you answered, "In general, yes." Now, I didn't get the meaning of the answer very clearly; did it mean that in general that you approve of all reprisal measures, or want to approve of all reprisal measures which were taken in the Southeast; do you mean by this you want to approve all those cases in which it was reported that for one German soldier 50 communists were shot, etc., or do you mean that you want to justify reprisal measures fundamentally?
A Yes, I meant the latter, and I have repeatedly stated this when I said that on principle I think reprisal measures are unavoidable, as long as the population through its attitude forced the occupation power to take these measures; and with the word "general" I therefore meant on principle, not as inclusive or in general for all the measures which were carried out.
JUDGE BURKE: Dr. Rauschenbach, it is my personal recollection that the witness has covered this matter exhaustively, and in great detail, both on direct and on cross-examination. I think, as he has stated, he repeatedly stated his attitude and his views on the subject.
DR. RAUSCHENBACH: That was the end of this question.
Q I just want to put one question which is directly connected with the cross-examination. Witness, you were asked by the Prosecution at the end as to whether you knew whether the English and the Americans shot hostages, and you answered in the negative, but pointed out an order, a publication made by the Russians in Berlin; now, please compare the conditions in Germany and in the Balkans, how does it happen that in the Balkans, as you said, reprisal measures on principle were necessary and were carried out, and why were hostages not shot in Germany?
A Because the German population gave the occupation troops no reason to do this, I assume.
DR. RAUSCHENBACH: I have no further questions.
Court No. V, Case No. VII.
MR. FENSTERMACHER: I will be very brief on re-cross, Your Honor.
JUDGE BURKE: Just a moment. It has been suggested by the presiding judge that I should inquire whether any other defense counsel wish to interrogate the witness further.
(no response)
Very well, Mr. Fenstermacher, you may proceed.
MR. FENSTERMACHER: Thank you, Your Honor.
RECROSS EXAMINATION BY MR. FENSTERMACHER:
Q. General Foertsch, did I understand you correctly on redirect examination to say you did not pass on the Directives for the conduct of Band Warfare in the East of November 1942?
A. The band warfare regulations, or whatever they are called exactly I can't remember at the moment, were given to the troops, as far as I remember in accordance with general rules direct from the Army Units Regulations Office to the troops.
Q. You mean those directives were sent out from the OKH directly to each particular division and corps, and didn't pass through your office at all?
A. I can't say with certainty, but I think they went directly.
Q. That would have been an irregular procedure would it not General Foertsch?
A. No, regulations were in general not distributed through the channels existing at the moment, out directly. During the further course of the war however, in the staff, or attached to the staff a kind of distribution center was set up, but as far as I remember this was only for the first time in 1943.