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.
Q. Did I understand you correctly to say on redirect examination that General Loehr himself drafted the supplement to the Commando Order?
No, I didn't say that. I said that I cannot say anything definite about the original of the draft of this supplement, because I can't remember these things in detail.
Q. Do you know where General Loehr is now?
A. I read in the newspaper that a Belgrade Court Martial sentenced him to death and that the execution has been carried out.
Q. Did you say, General, Foertsch, if General Loehr has not passed on the oommando order and the supplement that he would have been court martialed and shot?
A. That is an assumption of mine.
Q. Do you know of any other German generals who were court martialed and shot for falling to pass on a Hitler order?
A. I know that officers were shot after a sentence having been passed by court martial, amongst others the Graf von Ziehlberg.
Q. That isn't quite my question. I asked if you knew of any general officer who was court martialed and shot for disobedience of a Hitler order?
A. Apart from General Ziehlberg, whom I have just mentioned, I don't know of any other case at the moment.
Q. Who was General Ziehlberg and what were the circumstances surrounding his court martial and execution?
A. General Ziehlberg was as far as I remember, Divisional Commander at that time.
Q. What time was that?
A. I think 1944, yes - 1944.
Q. And what Hitler order had he disobeyed?
A. I only know about it from hearsay. He was ordered to arrest an officer of his staff, and he didn't carry out this order, - but I never had any official documents for this.
I only heard it from conversations.
MR. FENSTERMACHER: Your Honor, I would like now to offer Prosecution Exhibit 598, the Commando Order itself. The document Book 9, you will recall, contained the reasons given by Hitler for the issuance of the Commando order, and yesterday we offered the supplement passed on by General Loehr, and now we offer the Commando order itself. This is offered as Prosecution Exhibit 598.
Will you show the photostat copy to General Foertsch, please? (this last to clerk)
Q. Do you recognize that order, General Foertsch?
A. I can't compare it completely, out I think this was the same order which was submitted to me yesterday.
Q. Will you look at this document. I believe this is the one you referred to which was submitted to you yesterday, NOKW 2009, which was introduced as Prosecution exhibit 594; the first two pages of Exhibit 594, which are not reproduced on the exhibit, but appear in the photostat copy which you have in your hand, General Foertsch, are identical with the two pages of Exhibit 598, which I showed you first, are they not?
A. Yes.
Q. And the supplement to Exhibit 594 is page 3 and following of the document which I showed you yesterday, is it not?
A. Yes.
Q. Ill you turn now to the document which I showed you first, 498-PS, which is exhibit 598? Do you recall having received this document as Chief of Staff in the Southeast in 1942?
A. This one which I have just received?
Q. Yes, that is the one I mean.
A. I assume so.
Q. The Armed Forces Commander South East appears on the distribution list as having been sent copy number five; does it not?
A. Yes.
Q. Is there any indication from this document that more copies than one were sent to the Armed Forces Commander Southeast?
A. No.
Q. This order is dated Fuehrer Headquarters, 18 October 1942:
"For some time our enemies have been using in their warfare methods which are outside the international Geneva Conventions. Especially brutal and treacherous is the behavior of the so-called commandos, who, as is established, are partially recruited even from freed criminals in enemy countries. From captured orders it is divulged, that they are d directed not only to shackle prisoners, but also to kill defenseless prisonerson the spot at the moment in which they believe that the latter as prisoners represent a burden in the further pursuit of their purposes or could otherwise be a hindrance. Finally, orders have been found in which the killing of prisoners has been demanded in principle.
"For this reason it was already announced in an addendum to the Armed Forces report of 7 October 1942, that in the future, Germany, in the face of these sabotage troops of the British and their accomplices, will resort to the same procedure, i.e., that they will be ruthlessly mowed down by the German troops in combat, wherever they may appear.
"I therefore order:
"From now on all enemies on so-called Commando Missions in Europe or Africa challenged by German troops, even if they are to all appearances soldiers in uniform or demolition troops, whether armed or un in battle or in flight, are to be slaughtered to the last man.
It does not make any difference whether they are landed from ships and aeroplanes for their actions, or whether they are dropped by parachute. Even if these individuals, when found, should apparently be prepared to give themselves up, no pardon is to be granted them on principle. In each individual case full information is to be sent to the OKW for publication in the Report of the Military Forces.
"If individual members of such commandos, such as agents, saboteurs, etc. fall into the hands of the military forces by some other means, through the police in occupied territories for instance, they are to be handed over immediately to the SD. Any imprisonment under military guard, in PW Stockades for instance, etc., is strictly prohibited, even if this is only intended for a short time.
"This order does not apply to the treatment of any enemy soldiers who , in the course of normal hostilities (large-scale offensive actions landing operations and airborne operations), are captured in open battle or give themselves up. Nor does this order apply to enemy soldiers falling into your hands after battles at sea, or enemy soldiers trying to save their lives by parachute after battles.
I will hold responsible under Military Law, for failing to carry out this order, all commanders and officers who either have neglected their duty of instructing the troops about this order, or acted against this order where it waste be executed."
Is this the order which you as chief of staff passed on to the subordinate units of the 12th Army, General Foertsch?
A. As Chief of Staff I did not pass on the order, but the Commander in Chief, General Loehr, ordered the passing on.
Q. He gave that order to you and you in turn saw that the order was distributed to lower units; did you not?
A. I dealt with the order in pa sing it on, and of every other order too.
Q. He further questions, Your Honor,
PRESIDING JUDGE BURKE:
DR. Rauschenbach.
DR. RRAUSCHENBACH: I have no further questions to the witness.
PRESIDING JUDGE BURKW: Are there any further questions on the part of other members of the defense counsel staff? Any questions by the members of the Tribunal?
The witness may be excused.
(The witness is excused.)
DR. RAUSCHENBACH: Your Honors, I have one witness more. That is the witness Graf Schmettow, which I announced yesterday in writing to the Prosecution and we the Secretary General. Unfortunately I cannot find him on the list here which contains the names of the witnesses. It is the witness (maf Schmettow, who has already been approved for me by the Tribunal sometime ago. He is a voluntary witness and I intend only to examine this witness on three particular questions, that is, not in general about the documents or about other questions which have cropped up here. First, with regard to the absence of General Foertsch from his headquarters which he mentioned here on the witness stands secondly, with regard to the question which was mentioned in the cross examination of the witness Felber in the witness stand, the relationship of Police President Leissner to General Foertsch, and thirdly, the question of the relations between General Foertsch and the S. D. Those are the three points, about which I wish to examine this witness.
PRESIDING JUDGE BURKE: If there are no objections, you may proceed.
MATHIAS GRAF SCHMETTOW, a witness, took the stand and testified as follows:
PRESIDING JUDGE BURKE: The witness will raise his right hand please.
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
PRESIDING JUDGE BURKE: Very well, you may be seated.
DIRECT EXAMINATION BY DR. RAUSCHENBACH:
Q. Witness, please speak sufficiently slowly so that the interpreters can follow, and please take care that between each question and answer there is a pause so that in the meantime the question can be translated.
Witness, please state your full name?
A. Mathias Craf Schmettow.
Q. When were you born?
A. On the 22nd of October 1918.
Q. And where do you live at the moment?
A. In Cologne.
Q. You are not under arrest, you are free?
A. Yes.
Q. Witness, how long have you known the defendant General Foertsch?
A. Since September of 1942.
Q. And in what capacity did you come to know him?
A. I was his orderly officer.
Q. And until when were you his orderly officer?
A. Until 4 January 1944.
Q. Witness, during this period were you with General Foertsch, a lot, were you permanently with him?
A. I was permanently with him.
Q. Also when he was on leave and when he was on official trips?
A. When he was on official trips, yes, but when he was on leave then I was at home.
Q. And then can you will remember from the time you were with General Foertsch, on which days General Foertsch was absent from Headquarters?
A. Yes.
Q. And do you also know the reasons for his absence?
A. Yes.
Q. And how is it that you remember this so well today?
A. I kept a diary, and in this diary I kept a note of his absence from headquarters whether on official trips or on leave.
Q. And do you still have the diary?
A. Yes.
Now I submit you a document, which I have submitted as defense document for General Foertsch, No. 18. It is in document Book 2 of the defense. It is excerpts from his paybook and notes about his leaves. Witness, I assume that you have compiled a list of the absences of General Foertsch from your diary?
A. Yes.
Q. You could not have them all in your head. I presume you have the list written down. Please take out the list and compare it.
A. Well, the first date from the 3rd of September 1941 until the 21st of September, 1941, I cannot judge because I was not there at the time.
Q. And the second date?
A. As to the second date, according to my notes, the absence was then a little longer, it states here the 19th of March but two days must be considered for the journey which would make the 17th the first day of absence and this absence was prolonged by more days of leave until the 11th of April 1943.
Q. And what about the last leave?
A. That is correct. The dates agree, but in the meantime there are dates of absence which are not entered in the pay book because they are official trips.
Q. Yes, I was going to ask you about that now. Witness, please repeat again when did you come to General Foertsch?
A. On the 4th or 5th of September, 1942.
G. And now from your list there, would you please tell me on which days, apart from the leaves already described, General Foertsch was absent from headquarters and for which reasons, but, please, speak very slowly.
A. First of all on the 16th and 17th of October, 1942. The reason for absence was a conference with the Commander-in-Chief South in Teromino.
Q. Where is Teromino?
A. In Sicily.
Q. And the next absence?
A. The next absence was the 4th and 5th of November, 1942.
Q. And the reason?
A. The reason for absence was the inspection of costal fortifications on the Island of Crete.
Q. And the next absence?
A. The next absence was the 8th to 11th of December, 1942; reason: discussions in Sofia. The next absence was the 19th to the 30th of December, 1942; reason: conferences at the O.K.W. and later a short leave over Christmas.
MR. FENSTERMACHER: I object to this method of proving the absence of General Foertsch from headquarters and ask that the statements of the witness be stricken on the grounds that the best evidence here is the actual book itself, which he says he has in his possession. I think the book itself should be produced.
PRESIDING JUDGE BURKE: The objection will be overruled. You may proceed.
BY DR. RAUSCHENBACH:
Q. Please continue with the next answer.
A. The next absence was the 22nd or 23rd of April, 1943; reason for absence was a conference on Crete and a visit to the Island of Rhodes.
Q. Witness, you did not mention again the leave of the 17th of March to the 11th of April, because you stated it already before.
A. No. The next absence was the 29th and 30th of April 1943; reason for absence: discussions at the O.K.W. The next absence was the 17th and 18th of June 1943; reason: inspection of coastal fortifications on the Peloponess. The next absence was the 5th to the 7th of October 1943; reason for absence was inspection of coastal fortifications on the coast of the Adriatic Sea.
Q. Witness, now another question; do you know something about the relations between General Foertsch and the Higher SS and Police leader Meissner?
A. As far as I know there were no relations at all. I saw the Higher SS and Police Loader once seen on the occasion of Field Marshal von Weich's birthday he came to an official reception at headquarters in Belgrade.
Q. And was it not essential that you would have known if Meissner had come to any discussions with General Foertsch?
A. Yes, because all the people who came to report to General Foertsch had to report to me first of all in the ante-room.
Q. And a third question, witness, can you say anything about General Foertsch's relations with the S.D.?
A. No, I never saw any of the S.D. men ever report to General Foertsch and for having been received by him.
Q. I have no further questions.
CROSS EXAMINATION BY DR. FENSTERMACHER:
Q. Mr. Graf Schmettow, what kind of book is this where the absence of General Foertsch from headquarters are reported?
A. My personal diary.
Q. How big a volume is that?
A. About as big as this, various volumes, octava volumes.
Q. What period of time does the personal diary cover?
A. My whole service time with General Foertsch and also the subsequent time.
Q. That is to day from September, 1942, until January, 1944 and even later?
A. Until the end of the war.
Q. When did you last look at your diary?
A. When I came back from the war in order to get myself acquainted with all these things, that was the first time, and then the last time just before I was called to Nurnberg.
Q. Why did you not bring the book itself with you?
A. I brought it with me.