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.
Q. You have it with you now?
A. Yes, over in the lawyer's room.
Q. You were not with General Foertsch in 1941 so you would not know whether or not he was absent from headquarters on 16 September 1941?
A. No.
Q. And according to your testimony General Foertsch was not absent on the 19th of March, 1942?
A. On the 19th of March 1942?
Q. Yes, was General Foertsch present or absent on that date?
A. I was not there, I only came in September of 1942 as I have already stated.
Q. What was your rank when you were serving as orderly officer for General Foertsch?
A. Oberleutnant, first lieutenant.
Q. No further questions, Your Honor.
PRESIDING JUDGE BURKE: Any further questions on the part of defense counsel? If not, the witness will be excused.
(The witness is excused.)
You may proceed.
JUDGE CARTER: Just a moment, please. I wonder if you might have the last witness bring his diary into the Tribunal, please.
DR. RAUSCHENBACH: Yes, I can arrange that if it is deemed necessary. Is it to be submitted to the Tribunal?
JUDGE CARTER: That is right.
DR. RAUSCHENRACH: The witness will bring the book. I assume that it will not remain with the Secretary General as I would ask that the witness can receive it again afterward as he has personal notes in it.
JUDGE CARTER: Insofar as the Tribunal is concerned, there is no necessity for leaving it. We just want to examine it.
DR. RAUSCHENBACH: Apart from the examination of this diary, this temporarily concludes my submission of evidence for General Foertsch, but I would like to reserve the right that during the course of the proceedings if it should become necessary I can submit a supplementary volume of my document book.
I have a few documents, the certification of which are not quite in order, which I am going to submit at a later time.
PRESIDING JUDGE BURKE: We will reserve the ruling made by the Tribunal previously to cover that request and you may be accorded that privilege.
PRESIDING JUDGE BURKE: I assume that the witness will return soon with his publication. At what distance is the defense counsels' room? Will someone throw some light on that subject?
DR. SAUTER: About 200 meters, approximately 200 meters.
PRESIDING JUDGE BURKE: Thank you. Does the witness have the documents with him?
DR. RAUSCHENBACH: Yes, he has got the diaries with him.
PRESIDING JUDGE BURKE: Very well. The record will show that they are to be presented to the Tribunal.
JUDGE WENNERSTRUM: Witness, I apparently have before me some diary for 1943 or a portion of it and I note an entry for July 1, 1943 which is typewritten and inserted. Can you tell me the reason for this typewritten insertion?
A. I sometimes inserted typewritten things which I had noted down somewhere else.
JUDGE WENNERSTRUM: In your statements as to General Foertsch of 1943 you made some comments as to where he was. Will the messenger hand this to the witness and will you read or call to the attention of the interpreters -perhaps that would be better -- the entry that you made on April 22nd and 23rd concerning your presence or the presence of General Foertsch? April 22nd and 23rd, 1943 -now, what statement is there set out as to your presence or where you were or where General Foertsch was on those days?
A. Here -- shall I read it?
JUDGE WENNERSTRUM: If you will, please.
A. '22nd of April: his trip to Fraklion on Crete, there maneuvers of the 10th Fliegerkorps. Very friendly reception.
"23rd of April: Start for Rhodes. Inspection of German troop units. Breakfast with the Italian Governor there, Admiral Campioni. Food very good."
And then: "Inspection of palace in which C, showed us everything personally."
Now, the following are a description of this inspection -- I don't think you need that.
JUDGE WENNERSTRUM: No. Now, turn to June 17 and 18 and read what it says there as to where you were and what was done.
A. "17th and 18th: Flight with Chief and Major Schlottmann to Athens. In addition, Major von Koeckritz, the Ic, with the High Command of the 68th Army Corps. Inspection of the Akropolis" -- and then there again are notes about this.
JUDGE WENNERSTRUM: Of the inspection in Athens?
A. Yes.
JUDGE WENNERSTRUM: Continue a little farther.
A. "Afterwards by car via Mekara, Korinth, Mykene to Nauklion where the 1st Panzer Division is stationed," and then in between there are entries about this visit to the 1st Panzer Division.
JUDGE WENNERSTRUM: That's sufficient.
JUDGE CARTER: When did you make these entries in this diary? Did you make them each day?
A. No, sometimes I compiled the notes and didn't enter them daily.
JUDGE CARTER: You would enter two and three and four days at one time. Is that correct?
A. Sometimes even longer.
JUDGE WENNERSTRUM: I notice in some of these diaries that certain parts are underlined with a red pencil. What was the reason for that?
A. Well, I must have a look at the parts again. I can't remember it any more.
JUDGE WENNERSTRUM: I think in the one I handed to you there was a red pencil.
JUDGE CARTER: Farther over in the diary.
JUDGE WENNERSTRUM: If you will take this one you will find some red pencil marks.
A. Those are things which before I was called to Nurnberg I underlined because I assumed that they might probably be important.
JUDGE CARTER: They are not lines that you made at the time of your entries in the diary?
A. No.
JUDGE CARTER: You are certain, are you, that the dates and events therein stated are correct?
A. Yes.
MR. FENSTERMACHER: May I look at the diary very briefly, your Honors?
There is nothing, your Honors. I have no further questions.
PRESIDING JUDGE BURKE: You may be excused.
DR. RAUSCHENBACH: Your Honors, I have already stated that at the moment I am at the end of my presentation of evidence.
PRESIDING JUDGE BURKE: Dr. Sauter?
DR. SAUTER: Dr. Sauter for the defendant von Geitner. Your Honors, during the presentation of evidence for my client Geitner I will call two witnesses to the stand and would ask to be permitted to start the Geitner case in this way. The two witnesses have already been in Nuernberg for some days. They are both business people and both want to get away from Nuernberg as quickly as possible. These witnesses whom I intend to call to the witness stand, the first one is Gerhard Wollny, a radio operator from Stuttgart, and the other witness is a dentist, Dr. Heinrich Bub from Kirchendamitz, Oberfranken. The two witnesses were officers in Belgrade during the war.
PRESIDING JUDGE BURKE: Have you given the customary notice of the presentation of these witnesses, Dr. Sauter, to the prosecution?
DR. SAUTER: Yes, the prosecution knows.
PRESIDING JUDGE BURKE: If they are here and available they may be called without delay and you may develop the testimony that you will offer when they are on the stand. Mr. Rapp?
MR. RAPP: Your Honors please, simply for the record, we were informed approximately one half to one hour ago that these witnesses were to be called. It is customary that we are to be informed at least 24 hours. We have no objection, in order not to delay the progress of this trial, we will not "insist" on this 24-hour time, but for the record we would like to state this.
PRESIDING JUDGE BURKE: Is there any reason, Dr. Sauter, why a rule which is apparently recognized by both the prosecution and the defense should not have been recognized by you, particularly since you are anxious to complete the examination of the witnesses?
DR. SAUTER: These witnesses were announced to the prosecution and the Tribunal weeks ago. As a result the prosecution has known for weeks that these witnesses would be called by me. In addition, some affidavits by each witness have appeared in the document books which also have been in the possession of the prosecution for days. Therefore, it is nothing new to the prosecution.
MR. RAPP: Your Honors, the defense counsel is obviously referring to its application to have these witnesses appear in Nuernberg; but that he wanted to produce the witnesses this morning we were not notified until approximately one hour ago. The mere fact that these two witnesses have affidavits in the document book doesn't bear any relevancy to the point we are discussing at the present time.
PRESIDING JUDGE BURKE: Well, in view of the fact that you are willing to waive any technical rights, Dr. Sauter you may proceed. And it will not be necessary to review in advance the testimony of the witnesses but we will assume the testimony they give in the stand in the light it may throw on the subject.
DR. SAUTER: I would also like to point out, your Honors, that the matter is like this. We have assumed that the prosecution would take four days for General Foertsch's cross examination. We were told that and we made plans on this assumption. The fact that General Foertsch's cross examination would be cut so short, of course, not be envisaged by us.
PRESIDING JUDGE BURKE: Very well, Dr. Sauter, you may proceed and if your witnesses are here and available if you will call them, they will be sworn in due course.
DR. SAUTER: As the first witness, if it is agreeable to the Tribunal I call the radio operator, Gerhard Wollny.
PRESIDING JUDGE BURKE: Will the witness please raise his right hand and repeat the oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and that I will withhold and add nothing.
(The witness repeated the oath)
You may be seated.
GERHARD WOLLNY DIRECT EXAMINATION BY DR. SAUTER: (Counsel for defendant von Geitner):
Q Mr. Wollny, I think, first of all, you can take off your head phones. You can understand me without them.
A Yes.
Q Witness, please state your full name.
A My name is Gerhard Wollny.
Q Please spell your surname.
A W o l l n y.
Q When were you born Mr. Wollney.
A On the 24th of May, 1915 in Windhoeck, in Southwest Africa.
Q And where are you living at the moment?
A Stuttgart, Bad Cannstatt, Kissingstr. 53.
Q Were you a member of tho Party, the National Socialist Party?
A No, I was not a member of the Party.
Q Never?
A Never.
Q And did you belong to any organization of the Party -- that is, for instance, SA or SS?
A I did not belong to such organizations but nevertheless -- I don't know whether it is an organization -- I belonged to the Reich Colonial Association during tho period from 1940 to the middle of 1941.
Q And do you know whether this Colonial Association was founded during the Hitler time, the Hitler period?
AAs far as I know, this Colonial Association was already founded before the First World War.
Q Before the First World War.
A Yes, before the First World War.
Q And why did you join, exactly the Colonial Association?
A Through a man who was in that association I was told that the members of this association would have to be counted among the first ones who would be allowed to go back again to the colonies. The emigration to my former homeland had always been one of my main aims.
Q Witness, how did you come to meet the Defendant Von Geitner?
A In May, 1942 my regiment was in Athens ...
THE PRESIDENT: I think at this time we will take our morning recess, and you can conclude the statement later.
(A RECESS WAS TAKEN)