How, if this witness is in the city of Nurnberg, the best evidence is to have him here in Court. That doesn't say that under certain circumstances, with a desire to get to the truth and the facts, the rules of evidence may be extended a little bit for the purpose of getting to what we may hope to be real justice, but where this witness is here it seems to me ho should be presented here and that Ms testimony in court is the best evidence.
DR. SAUTER: May it please the Tribunal, the situation is quite simple, either the prosecution is satisfied with the affidavit and then everything is in order, or the prosecution wished to call the witness for cross examination, and then I shall approach the witness and I shall take care that he appears here in court. There is no particular difficulty concerned with this problem. In other trials we have had -
THE PRESIDENT: Just a minute, Doctor. This Tribunal has the highest regards for other Tribunals, and their rulings, but we are going to assume the responsibility for our own rulings, and it seems to me and I am sure it is the thought of the Tribunal, that we should have this witness here. The Prosecution has made an objection and there is no necessity of further comment. The objection will be sustained.
DR. SAUTER: May it please the Tribunal, the consequence of this will be the following: in the future I shall take the liberty of always reminding the Tribunal of its decision when the prosecution wishes to submit the affidavit of a witness who is here in jail then I too shall have to maintain the point of view that the best evidence is the testimony of the witness.
THE PRESIDENT: You will have that privilege and the court will take care of the situation when it arises.
DR. SAUTER: May I than make inquiry, Your Honor, on which day I am to produce the witness here?
I assume that the witness still resides in Nurnberg, and I shall ask the witness to appear here on whatever day the Tribunal wishes to examine him.
THE PRESIDENT: Whenever you wish to bring him in, Dr. Sauter. If you can bring him tomorrow or the following the time the defendant concludes his testimony, -- it is a matter for you to decide. And it has been suggested if you so wish you could have him here tomorrow morning and let him give his testimony.
DR. SAUTER: I don't believe I can get the witness here as fast as all that.
THE PRESIDENT: Whenever it is convenient with you it will be agreeable with the Tribunal.
DR. SAUTER: Thank you, Your Honor.
THE PRESIDENT: Dr. Sauter, it is very close to adjournment time and perhaps we can adjourn at this time, rather than start on some question that would not be able to conclude.
The Tribunal will adjourn until 9:30 to morrow morning.
(Thereupon at 4:30 p.m. the Tribunal adjourned until 0930 a.m.
23 October 1947.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Wilhelm List, et al, defendants, sitting at Nurnberg, Germany, on 23 October 1947, 0930, Justice Carter 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 courtroom.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present in court?
THE MARSHAL: May it please your Honors, all the defendants are present in court except the defendant von Weichs who is in the hospital and the defendant von Leyser who is being held for an interrogation.
THE PRESIDENT: Judge Carter will preside at this day's session.
PRESIDEING JUDGE CARTER: You may proceed.
KURT von GEITNER - Resumed DIRECT EXAMINATION - Continued BY DR. SAUTER (Counsel for defendant von Geitner):
Q Witness, yesterday you told us that your Commander told you at the time that reprisal measures be reserved for himself and you were not to interfere with these matters. I would now be interested to know what did you have to do in your capacity as Chief of Staff with reprisal measures at all?
A When I came to the Southeastern area and when General Bader informed me about these things, the whole problem was an entirely new one to me. I did not know whether the same situation applied to other theaters of war and I didn't know how it was handled in other theaters of war. General Bader told me that he himself detested these collective measures but since they had been ordered from higher headquarters and besides the attitude of the bands and the behavior of the bands and those parts of the population that were on their side of such a nature that one had to resort to harsh measures because otherwise one couldn't just cope with the situation.
Besides, he told me, which I indicated yesterday, that I need not bother about these matters. Of course, I was to be informed but it was purely his affair to take decisions and that was because he was the holder of executive power which could not be delegated to anybody else; and, furthermore, he was the judicial authority in the area.
Q Witness -
A I beg your pardon. May I say something else? I frankly admit that this instruction which was given to me by General Bader suited me because I did not feel attracted to the whole problem at all. But a time came when I came into completely new circumstances down there in the Southeast I could not possibly, judge what measures would be necessary and what measures were not necessary. In any case, General Bader regarded at the time this measure as a measure of military necessity.
Q Witness, during the war there was a servicing regulation, the so-called "Red Donkey" -- that is, the manual for the General Staff officers.
A Yes.
Q Did you have that book during the war and did you study it? You can answer with "yes" or "no."
A Yes, I did have a look at it occasionally.
Q Did you confirm by reading the book what General Bader told you, that only the holder of executive power and the judicial authority could order such measures and that these facts complied with the servicing regulation?
A Yes.
Q Witness, who ordered reprisal measures and other such things and who requested the Commander of Serbia to order them? Who dealt with all these matters before General Bader made his decisions?
A The request was made: (a) by Administrative Sub area Headquarters, (b) by troop commanders, (c) by the Higher SS and Police Leader.
Q And who did then work on such matters in your staff -- that is, in the staff of the Military Commander, before they were submitted to the Commander himself?
A These questions were dealt with by an officer who had been appointed for the task especially, by the Commander. He was a legally trained man and also trained in administrative matters and he examined the problems at hand with regard to the correctness of the description of the events, and then he submitted his results to the Commander. The Commander personally made the decision.
Q Witness, did you by any chance, by looking at documents submitted during this trial, find any documents which show that not you had to deal with instructions of this kind but another officer?
A Yes, I believe there are two cases which show this clearly. One case is an entry in to the War Diary, if I am not mistaken, dated January 1943. I believe it's actually dated the 30th of January 1943.
Q Witness, I will give you this excerpt from the War Diary to support your memory.
DR. SAUTER: May I inform the Tribunal that this document which I am showing to the witness now will be contained in Geitner Document Book IV under Document 88. It will be later submitted to the Tribunal. It is contained in Document Geitner Book IV, Document 88, and it is an entry into the War Diary, 30 January 1943.
Q Maybe you would like to read this entry, witness, and explain to us.
A "O I will report to the Military Commander about new regulations regarding reprisal measures."
Q And what is shown from this document?
A This document shows that the "OI" was the expert on these letters.
Q Was this the 1st lieutenant who was mentioned yesterday by a witness?
A Yes, he was the one, OI just happened to have another document here. This was contained in the document book of the prosecution, XVIII, Document NOKW-698. It is contained on page 3 and concerns a discussion with Gruppenfuehrer Meissner and under figure "3" I would like you to have a look at this passage.
Maybe you would like to read it and give us the explanation.
A Thank you. This is a note concerning a discussion between General Felber and Gruppenfuehrer Meissner and it is dated the 7th of January 1944. It says there under figure "3":
"Reprisal measures for Police Captain Hoffmann who was shot: Meissner suggests to shoot 25 Draza Mihajlovic followers and 25 Communists. Besides, he will send an SD Command to Kusic in order to clarify the relations between the attacker and the population of the village."
Then we have here a note by General Felber which says: "Discuss the matter with Ol."
Q Thus we happen to have here a few documentary examples from which you conclude that they prove that the instruction for these affairs were made by another officer of your staff.
A I wouldn't say "instruction." I would say "examination of the case and information of the Commanding General."
Q Witness, let us now assume the normal case. Let us assume that the Military Commander himself was present. What then did you personally have to do with reprisal measures? How did you have to deal with them, if at all?
A Of course, I was informed about these measures. I had to be informed about everything that went on in the country. In most cases I was informed through the Ol who told me about it after the Military Commander had made his decision. He would then come to my office and tell me the Commander has decided in this or that direction. In very many cases the Commander struck off items from the requests which he got. Sometimes the officer concerned would approach me after the Military Commander had made his decision and would show me the draft of the order which was made on the basis of the Military Commander's decision.
Q Witness, did you ever initial such retaliation orders of your Military Commander? Did you put your initial on them?
A Yes, that happened occasionally. It was not the rule. Thus initialing was not always made and was not even made in the majority of the cases, as I assert, before the draft of the order issued by the Military Commander, was submitted to me. In many cases this initialing was done later. Occasionally, it was done on the occasion of the weekly checkup of the files which the staff had to do before they went to the files.
Q Witness, what in your opinion and what according to your attitude was the legal significance of this initialing concerning the responsibility of the person who initialled it?
A If the Military Commander had issued an order concerning the handling of some affair or other and if the order was then passed on in the right legal form to the Operational Department -- what I mean is, if it was put down properly in draft -- it then came to me and if I initialled it, before it came to the Military Commander, then that meant that I was of the opinion that this order would comply with the will and wish of the Commander and that in my opinion it would comply with the orders of the superior authorities and that it had also been put down in the correct legal form.
Q In your opinion, did you take any responsibility by initialling a reprisal order with respect to its contents? To put it in other words, did you yourself believe that by initialling you became responsible for the reprisal measure?
A No, the responsibility remained according to the German point of view to the fullest extent with the Military Commander.
DR. SAUTER: May it please the Tribunal, I would like to submit this Document No. 8 in Document Book, Geitner I, contained on page 15. This document will get Exhibit No. 7, Geitner 7. May it please the Tribunal I would like to submit this document in this connection.
MR. RAPP: I believe this to be Exhibit No. 6. I believe the affidavit which Dr. Sauter submitted yesterday was to have been Exhibit 6 and it was not admitted into evidence in view of the objection of the witness which was to appear here.
DR. SAUTER: This document will have Exhibit No. 7 because I gave Exhibit 6 to another document which was admitted yesterday and that was the affidavit of Dr. von Kohoutek. That was the witness whose affidavit was read in part and who is to appear here for cross examination because he happens to reside in Nurnberg.
PRESIDING JUDGE CARTER: You can retain the number on the old exhibit if you care to. It hasn't been admitted in evidence but I think it is proper that you call the other one Exhibit 6 and this one Exhibit 7.
MR. RAPP: Your Honors, Dr. Sauter referred to this witness as being called for cross examination. I believe this to be incorrect. He is not to be called for cross examination. Furthermore, if the witness is being produced by Dr. Sauter this affidavit becomes superfluous as such and, therefore, I believe if we give it a number now we will have to strike it at a later time anyhow.
PRESIDING JUDGE CARTER: The mere fact it has a number doesn't mean it is in evidence.
DR. SAUTER: I shall not call the witness Kohoutek as my witness. I have no doubt that the affidavit of a witness can be read and has to be accepted as evidence even if the witness is here in Nurnberg. The only possibility which is open to the prosecution in such a case is to demand that the witness be called for cross examination and if I do not produce the witness for cross examination then the prosecution has the possibility to demand that the affidavit should not be considered in evidence. But if I am prepared to produce the witness for cross examination then, in my opinion, the affidavit has to be considered as evidence and should also have an exhibit number. I shall, therefore, call the witness only for the purpose of cross examination. If the prosecution decides that they do not want a cross examination then I see no cause to produce the witness for cross examination. However, I am prepared, if the Tribunal considers it proper, to give this new document, which is Document No. Geitner No. 8, Exhibit No. 6. That is up to the Tribunal.
PRESIDING JUDGE CARTER: The difficulty is, Dr. Sauter, that while you have a very fixed opinion, it isn't the opinion of the Tribunal. The Tribunal ruled yesterday that the witness being here in Nurnberg had to be produced and that the exhibit would not be accepted in evidence. Now, if you don't care to call the witness, that means the witness has no testimony before this Tribunal. We made that plain and the Tribunal is adhering to it, whatever your personal opinions may be.
DR. SAUTER: Then this document which I am just about to offer will receive Exhibit No. 6. This is an affidavit by General Halder. He was the former Chief of the German General Staff. The affidavit is dated the 25th of July 1947. It has been properly sworn to and has been certified by the Camp Commandant.
From this affidavit I am reading at this moment merely the paragraph under figure "4". This is contained on page 17. The witness Halder says here the following.
This is on Page 19 in the English Document Book, the last paragraph. I shall start again under Arabic figure 4, contained on Page 19 in the English text of Document No. 8. The affiant, General Halder, the former German Chief of Staff, says the following:
.....
"4. As to the significance of the Chiefs of Staff signature that was usually put under drafts and final copies that were to be presented to the commander there was no uniform official interpretation. But if there was no other agreement between commander and chief of staff the following may be considered as having been the rule:
At the presentation of a draft to the commander for his approval the signature of the chief of staff meant that in his view the proposed draft corresponded to the intentions of the commander as well as to the orders from higher sources, and that the chief agreed to the wording of the draft. If there were any double as to the intentions and the will of the commander, or discrepancies between him and the directives of superior offices, then it was customary to present the latter orally prior to the presentation of a written draft.
By presentation of a fair copy, of which the draft had already previously been approved of, the signature of the chief, as the man responsible for office procedures, merely meant, according to common usage, that the fair copy corresponded to the draft already approved of and could be signed without rereading."
That is the end of the quotation.
MR. RAPP: Your Honors, I'm discovering a discrepancy in the translation, and I would like to ask the Tribunal that we may hand one paragraph of the original affidavit to the Interpreters to have this straightened out.
PRESIDING JUDGE CARTER: That may be done.
MR. RAPP: For the Interpreters, I'm referring to the first two lines in Paragraph 4 of the original, which you now have.
If Your Honors are looking in the English Document Book, it is not paginated. It is Document No. 8. It says on top "Page 17 of the original" and underneath is a "3", and way at the bottom of this page is Paragraph 4. I'm taking exception in the first few lines appearing under Paragraph 4.
(The English-German Translator begins to translate into German).
I'm going to ask you to translate this into English.
THE COURT GERMAN-ENGLISH INTERPRETER: I believe the error in translation concerns the German word "Signum", which is translated as "signature", but which should be translated as "initial". It is merely an initial.
MR. RAPP: That was the change I would like to make, Your Honors. It appears as "signature" in the English, and it should be "initial". There is quite a difference.
PRESIDING JUDGE CARTER: That is in the first line?
MR. RAPP: Page 18 of the original. That is on the next page on top in the second line, the word "signature" -- the second word from the left. That should be "initial" rather than "signature". Thank you.
BY DR. SAUTER:
Q.- Witness, does this conception of the former German General Chief of Staff also correspond with your opinion?
A.- Yes.
Q.- Now, concerning the question of initialing, witness. There are three documents which I would now like to show you. They are three documents which have already been mentioned previously, and I am going to show the photostats to you of the following documents: NOKW-915; that is Exhibit No. 248 of the Prosecution; it is contained in Prosecution Document Book X, on page 14. Then the second document will be NOKW-1413; this is Exhibit No. 216, which we find in Document Book X of the Prosecution, on page 44 and the following pages. And the third document will be NOKW-1395, which is Exhibit 271, found in Document Book XI of the Prosecution, on page 26.
On these documents we find several initials or signs, and the documents have already previously been dealt with concerning this question. I would like the witness to state whether it is his initial or somebody else's, and also what the significance of the initials is. Perhaps, witness, you look at Exhibit No. 248, NOKW-915, first and give us an explanation.
A.- This Document NOKW-915 is an order dated the 12th of January 1943. It is an order by Bader and addressed to Administrative sub-area Headquarters 809. This order contains the following initials: "H" for "Henry"; then there is an "Sch"; and there is a "G" for "George". This "G" is undoubtedly my initial. But I would like to say here that I have doubts as to whether I initialed this document before it was submitted to the Commander. I cannot prove it, but when we look at the document after next I shall refer back to this case. This order, dated the 12th of January 1943, contains also an "Sch".
Q.- Is that the second document? Maybe the first photostat can be shown to the Tribunal so that the Tribunal can have a look at the photostat and observe the initials. Those are the very documents which at a previous date have been discussed and previously the Tribunal has voiced doubts concerning the initials, and that is why I am submitting this to the Tribunal now.
Now, to the second photostat.
A.- The second photostat contains the same.
Q.- Is it your initial or isn't it?
A.- Yes, it contains my initial, but I would like to point out that I do not believe that, at the time, I initialed such orders before they were submitted to the Commander.
Q.- Why don't you believe that this is the case?
A.- You'll hear that in a minute. I shall now turn to the third document.
A.- This third document is an order dated the 14th of January 1943, and it is addressed to the Administrative sub-area Headquarters 809. This document was signed by General Bader personally. It contains his handwritten signature, and it also contains his name in typewritten letters. Under the typewritten name we find a long-drawn, rather cursory "G" ('G" for "George"). It would be contrary to the respect for the Military Commander to sign the document in this manner before it was submitted to the Commander, and I did not at all feel inclined to do anything like that. I can declare that I made that signature at a later time, probably before the document was filed away. And the very same fact applies to the document which is dated the 14th of January 1943. It is addressed to Administrative sub-area Headquarters 809. Here again we have a long-drawn "G". I would never initial in that manner if anything was to be submitted to my commander. Here again this initial was put on at a later date. Concerning the fifth document, we find a small "G" on the right spot. I believe this initial too was made at a later date --I mean when the document was to be filed, or at some other occasion.
Q Witness, if the Commanding General discussed reprisal matters with you would it happen on those occasions that you yourself would make certain recommendations to the General for such orders?
A No, it did not happen. I should say concerning discussions of a basic nature of these matters I would not leave the General in any doubt, that I would favor a milder attitude towards these matters. And on these occasions the General answered that in view of the enormous number of surprise attacks and sabotage acts, and in view of the orders which he received, he could not alter his point of view. May I say something else? I think it is important if the Tribunal were shown these initials which undoubtedly were made at a later date. I refer to the long-drawn, cursory "G's."
Q Perhaps it would be possible for the Tribunal to have a quick look at these documents. (THE COURT PAGE PASSES THE DOCUMENTS TO THE TRIBUNAL). Are those the two documents concerned?
AAgain and again General Bader told me that I was not to interfere in these matters, and that I was not to concern myself with them. I was to leave everything to him. As a frank, former soldier I must declare that this whole attitude of General Bader, concerning these matters, impressed me, so to speak. He took upon himself these difficult questions, on which orders from superior headquarters had been given. He took full responsibility for them concerning his own person. He did not want it to happen that any unit commander or any headquarters commander should be burdened with this responsibility. In the past he had experienced certain natters of which he told General Foertsch that he could not approve of them by any means or in any manner. He deliberately wanted to prevent the recurrence of such incidents, and it took upon himself the burden as a decent, honorable German soldier. This impressed me deeply, and I personally have the highest respect for General Bader just for this reason. I know how terribly he suffered under the situation. I know how, more than once, he considered his resignation, and I know how he had already prepared his request for resignation.
I know he discussed his resignation with General Boehr, and I know hoe he then came and told me that he had torn up this piece of paper because "I am a soldier; I have to obey; my units in the field to whom I have given an order have to obey too. I cannot try to get out of it; that would be desertion." That was how the situation actually was.
A The other documents have not yet been discussed. NOKW 1413.
Q Just a moment. Concerning the photostats which I have shown to the Tribunal with regard to your initials, have you anything to say about them?
A No, the Tribunal hasn't had this one yet.
Q Well, maybe we can submit them later.
A I think it is rather important.
Q Then, will you just add whatever you want to say regarding Document NOKW-1413?
A Now, concerning Document NOKW-1413...
Q That is also concerning your initials.
A Yes.
PRESIDING JUDGE CARTER: Dr. Sauter, I think if you would ask more questions and keep the answers a little more responsive we'd get along much faster. When you let the witness loose in an open field it's very hard to restrain what he has to say. Won't you please ask more questions and restrict the answer to some extent?
DR. SAUTER: I am endeavoring in any case to adhere to the rules of procedure in this respect, but I can also understand it if the witness cannot quite master his excitement concerning the experience of those days. Would you please excuse the witness in this respect?
BY DR. SAUTER:
Q Witness, if you have anything more to say regarding Document NOKW-1413 in order to clarify the facts will you do that as briefly as possible?
A In discussing Document NOKW-1413...
PRESIDING JUDGE CARTER: What is the exhibit number?
DR. SAUTER: It is Document NOKW-1413, Exhibit 260. It is contained in Document Book X, and is on Page 58 of the English text.
BY DR. SAUTER:
Q This is the second of the two photostats which I have mentioned previously concerning the initialing; so, witness, will you please answer as briefly as possible?
A Yes. When the Prosecution discussed this document the following was asserted. "We believe that the initial "B" should be changed to a "G" ("G" for "George"), and further that the "Y" - which actually is not a "Y" but "Sch", should be changed to "G". Then, His Honor intervened and asked for the basis for these changes, and he said "When Defendant von Geitner is on the witness stand, then he should deal with these questions." In the whole Document NOKW-1413not one of my own initials is contained. May I submit that as evidence?
Q Witness, you told the Tribunal that General Bader suffered under the pressure concerning these reprisal measures. I would be interested in this context to know whether any effects of this fact--or to put my question a little more positively--Did General Bader and his successor, General Felber, take reprisal measures for all sabotage acts and for all attacks in the manner as was ordered by the OKW, or were there cases for which there should have been reprisals but no reprisals were actually taken? How was the effect in actual practice?
A To begin with, the practical effects were that only the most necessary measures were taken concerning reprisals and that a number of quite heavy cases of sabotage or attack were not reported to superior headquarters, so that no reprisal measures should have had to be taken. In a great number of cases the OKW, and even our headquarters, was asked over the head of the Commander in Chief what had happened in a specific case. Besides we had to consider the rather obscure official channels which went to the Supreme Headquarters.
A surprise attack, for instance, on a mine had to be atoned for because the Plenipotentiary for Economy took every possible opportunity to make use of the channels to Goering in order to tell him the occupation forces did not protect him. This applied more in the case of the Higher SS and Police Leader.
In spite of this not everything was reported. In order to prove what happened concerning the higher SS and police leader in these cases may I point to two War Diary entries? One is under date of 24 November 1942. At that time I had attempted to have a friendly talk with the high SS and police leader. After all we had to get along with these people and I told him, "Would you please take care that these reports by dubious channels are stopped." His answer was, "We have to report everything, even if it is not true." A similar request was made in 30 March 1943. He spied on everything and he checked up on everything. He checked in factual matters and he checked impersonal matters. Now, I will give you an example -
MR. RAPP: May I inquire from the witness, are these two references he is making from documents the prosecution has submitted, and if so inasmuch as you are quoting will you give the document number or exhibit number, unless as is customary his defense counsel will help the witness in that respect.
THE WITNESS: No, these documents have not yet been submitted. They will be contained in Document Book Geitner IV, excerpts from War Diaries.
JUDGE CARTER: Dr. Sauter, it was my understanding that the witness was being interrogated about Exhibit 260. Now, I think you should confine his answers to that, and then ask him another question if you want to get into another subject.
THE PRESIDENT: I would like to make inquiry of the witness right here as to Exhibit 260. Do you have it before you, Mr. Witness?
THE WITNESS: Yes.
DR. SAUTER: Exhibit 260 has already been dealt with. The witness has now referred to excerpts from War Diaries which came from Washington, and which we have only looked at during the last few days, and these excerpts from War Diaries will at a later time be submitted to the Tribunal as documents for the defense.
THE PRESIDENT: I want to ask a question about Exhibit 260.
BY THE PRESIDENT:
Q You are being handed the photostat copy, and I want to inquire as to whether or not the initial at the bottom which was changed or suggested changed with the submission of this document, is a "B" or a "G", or whether that is your initial?
A No, in the whole of the document none of my initials are contained. This one is a "B".
Q And the statement that was made at the time of the introduction of this exhibit by the prosecution that this should be a "G" was not correct?
A No, that is not correct. As I see it, this assertion was contradicted by the prosecution itself at the time, and was shown as not correct by the submission of my affidavit concerning my curriculum vitae. On that occasion I had made a change and had put my own "G" on the margin of the document and this "G" was shown as an example of my initial "G", and it is quite a different sign than this "B" which we find at the end of almost all the documents of this exhibit.
THE PRESIDENT: Thank you.
BY JUDGE CARTER:
Q Will you turn to page 5 of that Exhibit, page 5 of Exhibit 260?
A Page 5?
Q Possibly that is page 2 of the original, the way it is set up. It is the order of 9 February 1943.
A Yes, I have got it.
Q There are two initials at the bottom of that order, is that correct?
A The order of the 9 February 1943, yes, that is correct. There are two initials.
Q What is the first initial?
A The first initial is a "B".
Q And do you know whose initial that is?