In actual divisions it was composed of all kinds of weapons and is at least 10,000 to 12,000 men strong.
Q Witness, there is, however, another way one could look at that and I would like to get your statement. The OKW in full realization of the illegality of reprisal measures against these forces deliberately tried to indoctrinate the troops and the words at large with the idea that these forces were mere bandits and the OKW did this for the explicit purpose to give pseudo-legal orders the basis they needed to carry out their criminal intent. Why wouldn't that be also an approach one could take.
A Well, it takes quite a lot to be able to follow that line of thought. I shall try to do it.
Q Witness, if you are not in a position to answer it, of course you don't have to; I may recall to you, however, that during the direct examination you made quite a few profound statements about international law, the Hague Convention, and other things, I presume not only because you are a General and ought to know about these things -
JUDGE BURKE: Are you asking a question or delivering an address?
MR. RAPP: I am merely telling the witness not to answer if he doesn't know.
JUDGE BURKE: Ask the question and if the witness refuses to answer the Tribunal will admonish him to do so.
BY MR. RAPP:
Q Can you answer that question?
A I am only surprised because of your assertion that the OKW could have ever had the opinion that Tito's forces were legal belligerent forces. Now you go even further and you say that the OKW should have applied a trick to rob these forces of their legality by giving them different designations. It is quite out of the question that the OKW could for one single instance regard these forces as legal belligerents and it is also quite out of the question that anybody who was in the Balkans could have considered these forces legal forces.
Q Witness, the conclusion which you drew is that a fact of your own knowledge. Have you been at the OKW when they told you that, or is that only your own opinion?
A When I took over my post on the 6th of August that was put to me very clearly and explicitly.
Q Witness, you were asked why you did not consider the Tito and DM partisans as regular troops, you said, in short, that after the capitulation of Yugoslavian Army to the Germans nobody in Yugoslavia was legally entitled to bear arms against Germany or German forces. Did you make that statement?
A Yes, I said that.
Q Witness, as an intelligent man, and a doctor of law, professional soldier, did it ever occur to you that Germany was the aggressor nation which invaded Yugoslavia and parenthetically I may mention without provocation and this step alone put Germany and its armed forces outside of her protection, according to international law, because her act was criminal ad initio; can you say something to that?
A May I answer you as a soldier, as a jurist, and to what extent it will be intelligent I don't know; you, yourself, will have to be the judge of that. Let us start from the fact that Germany attacked Yugoslavia and that German troops occupied the Yugoslavian area. From the point of view of the Hague Rules for Land Warfare it is irrelevant whether Germany's war against Yugoslavia was a justified war or whether it was an unjustified war. From the point of view of the occupation of the country there is only one criteria and that is if the occupartion was de facto an occupation or not, a question of whether it was a legal one; that question is not put by international law. The occupation of a country is seen by the international law only from the point of view of the actual facts but not from the point of view of law and if the occupation has in actual fact been carried out then the provisions of the Hague Rules for Land Warfare are binding for the population.
This population is then obliged to keep quiet and peaceful and to obey the instructions and directives of the occupation powers, irrespective whether or not the occupation is a justified one or not. I can give you the reason for this because I have concerned myself a lot with these questions. International law to a large extent works with the conception "de facto" and not with the conception "de jure" because otherwise these provisions would get too uncertain. The conception of legality, the "de jure" conception, would constantly make difficulties and would constantly be open to discussion about its interpretation. If as a basis of a legal concept, as the mentioned rules for land warfare, I demand a mere fact, then the legal certainty of these provisions will be much higher.
Q. I will talk to you somewhat later about Article 42 of the Hague Convention which you have reference to. Right now I would like to talk to you merely about that part of the question which deals with the surrender of the Yugoslav Army, as it was actually historically; now, isn't it true that the forces which surrendered, or the individual which surrendered, on the part of the Yugoslavs was not the elected government of Yugoslavia, isn't that a fact? Maybe you know the person as well as I do who signed these agreements with the German invader?
A. Of all of these events I know nothing, except what I heard here during this trial. From earlier days all I know is the fact that the war took place, and that the Armistice was concluded. Everything else that took place around these facts I know nothing of.
Q. In other words, you are not prepared to answer that question?
A. I would be prepared and I would be delighted to answer it, but I don't know the facts.
Q. Witness, when you arrived in the Southeast Theater the order for reprisal measures against the Tito and Mihajlovic forces was already passed down, was it not?
A. Yes, that order was already with the troops.
Q. You said further during your testimony that it would be impossible for a Commander in Chief of an Army to cancel a Fuehrer Order or countermand it, I think would be a better word; did you make that statement?
A. It is impossible to render it invalid. To countermand it in a certain respect is possible in some instances.
Q. Witness, I would like you now to take a look at Document Book II, NOKW 258, Exhibit 53 ---
For your Honors convenience I repeat again, Document Book II, NOKW 258, Exhibit 53, page 67 in the English. I do not know the German page - German page 52.
JUDGE BURKE: Because of the number of the Document Books there may be a little time required between the reference and locating them.
MR. RAPP: Certainly, your Honor. I will take that into consideration.
Q. Witness, I have handed you a photostat copy of this particular NOKW Document 258, which we have reference to; now this is the Reprisal Order dated September 16, 1941. Will you explain to us, witness, why you referred to this order as a Fuehrer Order rather than a Keitel or an OKW order; in your direct examination you referred to this particular order as a Fuehrer Befehl. It doesn't seem to me to be a Fuehrer Befehl?
A. All these orders were Fuehrer orders because Keitel did not order these things from his own initiative. Furthermore we have the sentence here, "The Fuehrer has now ordered" that is the second sentence in the second paragraph. "The Fuehrer has now ordered that most stringent measures are to be applied everywhere in order to break down this movement in the shortest the possible, the following measures are to be applied." That is quite clearly and obviously a Fuehrer order.
Q. Now, witness we know that all orders in the German Army could be considered Fuehrer Orders, but you have seen during your service in the Army, and in this Court room, specific Fuehrer orders, for instance, the Commando Order signed by Hitler. This is an order which Keitel has signed, is it not?
A. Yes, according to the form Keitel has signed it, but according to the contents this order is a Hitler order. It can even be been from the test of the order. Keitel has issued dozens of orders, orders of an organizational nature, orders concerning the strength of some units; new leave regulations for the armed forces, and similar things. Those are orders which Keitel has signed, and of which Hitler didn't know anything but this one here is purely and clearly a Hitler order, and it was always regarded as such.
Q. Now, witness it is a fact, however, that Hitler in this particular instance did not sign the order, nor does the order state "By order of the Fuehrer, the following is to be done," the way, for instance, the Commando Order reads?
A. Yes, that is no longer necessary, because if it says in the text of the Order "the Fuehrer has now ordered", etc. etc., that there would also be an additional sentence "On order of the Fuehrer."
Q. In addition to this, witness, you referred also to the service regulation pertaining to the item against partisans which was published jointly by the WFST of the OKW, and the OPI of the OKW, and in that same sentence you tried to convoy the impression that this was also a binding Fuehrer Order which no Commander of an Army would cancel or countermand. Will you explain that, please?
A. That assertion is also correct. I know how this regulation devoloped. It was drawn up on Hitler's insistance. The regulation was submitted to Hitler. Hitler rejected it, and personally made changes. All the very strong sentences that are contained in this regulation are made by Hitler personally. Then he took the draft, gave it to Jodl and ordered him to issue it the way it was. Jodi signed it, and thus the regulation was issued. General Buttlar must be able to confirm this, because he helped on the draft.
Q. I presume you were there when Hitler did that?
A. No, I had nothing to do with the OKW at that time, but it was told to me in this way. This directive is under all conditions a socalled Hitler directive.
Q. But that is not apparent from the booklet as such is it, unless one knows the background which you have just given us?
A. Well, I can't say that at the moment whether you can see it from the booklet or not. I only believe that Jodi signed it, but this directive was never regarded as anything but a Hitler directive. It is quite impossible that Jodl, from his own initiative, would order things as are contained in this order, because that is the strongest regulation that one could possibly imagine. It is impossible that Jodl ordered: "Every captured bandit is to be shot."
THE PRESIDENT: General, may I interrupt? In your reference to Jodl are you referring to this Exhibit 53, which apparently was signed by Keitel, or are you mistaken in that?
THE WITNESS: No, I am no longer referring to this exhibit. I am referring to the service regulations against band warfare.
THE PRESIDENT: Some other exhibit?
THE WITNESS: Yes, that is a different exhibit. That is right.
JUDGE BURKE: We will take our usual recess at this time.
THE MARSHAL: Court will be in recess for 15 minutes.
(Thereupon a 15-minute recess was taken.)
Q. Witness, prior to the recess we were talking about the service instructions pertaining to the fighting against partisans, and you stated that you are sure that this particular instruction is that amount to a Fuehrer Order; I would like to ask you now whether or not such statements on your part can be readily seen when one looks at this booklet, and for this purpose I have bought one with me now to refresh your memory, and will give it to you now. I would like you to tell me whether or not in this booklet there is any reference to Hitler, the Fuehrer?
DR. FRITSCH: If the Tribunal, please, may I ask first of all whether this booklet is submitted here as evidence or what the purpose of this is?
MR. RAPP: I am not offering this at all as evidence. I am merely trying to refresh the witnesses memory. He has made a statement under oath, and I am trying to protect him from possibly making an erroneous statement without the aid of the book I am making reference to. I am not intending putting in into evidence.
DR. FRITSCH: Then I might ask that this booklet be more closely described, so that the record will show what this booklet is about.
MR. RAPP: I intended to do that anyhow at the proper time.
JUDGE BURKE: You may proceed.
Q. Now, witness, will you, please, first read the title of this particular booklet, and the agency within the German Armed Forces which was responsible for its publication as printed on the cover of this booklet?
A. The regulation is called "Directives how to Fight the Bands in the East." The agency which issued it is the OKW, the Supreme Command of the Armed Forces.
Q. I would like to ask you if this is the booklet you had reference to or not?
A. Yes, it is the same booklet.
Q. What is its date of publication, witness?
A. November 11, 1942.
Q. Now, do you still say that this booklet is a Fuehrer order?
A. From this booklet from the way it is in form here, it does not emerge definitely. But the OKW, the Supreme Command of the German forces, is not an agency which issued orders; it is simply Hitler's Staff, and that is the issuing agency of these regulations. This could not have done without Hitler's order, according to general German principles, and if we look at certain pecularities of the text, for instance on page 31, if I can read it rightly there. The pagination isn't here, but I shall read what I have:
"When treating with bandits and their voluntary helpers extreme harshness is indicated. Any sentimental considerations are to be spared in these decisive questions. They would be irresponsible. Even the harshness of the measures and fear of punishment to be expected must deter the population, etc."
That is not the language used by Jodl who is such a soft-hearted character. That is the sort of language which comes from Hitler. Should Buttlar tell you the history of how this book originated you will find that especially in the field of treatment of bandits the draft was full of deletions and additions, made by Hitler. He was deeply interested in these regulations. It goes without saying that this is a Hitler order and we never looked on it as anything else.
Q Witness, if I understand you right, firstly, inasmuch as Hitler was the Supreme Commander of the Armed Forces of Germany nothing could be done within the German Armed Forces which was not openly or by innuendo ordered by Hitler; secondly, nobody in Germany could use such strong language besides Hitler. Am I right in drawing that out of your statement?
A Well, both statements are certainly not correct because there are sufficient orders in the German Army which are not based on Hitler and I am sure there were people who in particularly critical moments would have spoken at least as strongly as that if not more strongly. I can easily imagine that.
Q Do you want to say, witness, that all the criminal orders go back to Hitler but all the orders which are not criminal they are issued by the officers corps?
A First you should state what order is being called criminal here. I do not know what I am to understand by a criminal order.
Q We will cover that during the afternoon if you want to save the answer to this particular question. How far do you go along by saying that nobody but Hitler could use such strong language which you had reference ot or wanted to prove -- rather, the fact that this is a Hitler order because this language was used?
A No, I am sure there were orders by other people than Hitler who were equally couched in extremely strong terms. I can tell you that I myself issued orders couched in an extremely strong language whenever there were situations where the question was to be or not to be. Then of course I did have to issue strong orders in order to, from a psychological point of view, have any effect on the subordinates so that they would bear up in these hard times. In a situation which might face a division at a given time - that is to say, in the winter battle in Russia in 1941-1942 - it is impossible to imagine and that you can overcome these situations with anything but extreme harshness against yourself and everybody else. It should go without saying that in these situations harsh worded orders had to be issued.
Q I realize that, witness. May I once more ask you to go back to this Keitel directive NOKW-258 in Document Book II on page 67. I have only one more question in connection with this particular document. You called my attention to the fact that under paragraph 2 there is a statement contained saying: "The Fuehrer now has ordered that severest measures are to be employed in order to break down this movement in the shortest time possible." You followed me in what I have reference to, witness?
A Yes.
Q Do you now deduce out of this statement that the 100-to-1 and 50-to-1 was personally given by Hitler or did Keitel consider this adequate as the severest means which, after all, is the difference as to whether this is a Keitel order or a Hitler order?
A It is my conviction that these ratios had been decided by Hitler.
Q Witness, by making reference to this order we have just looked at you made it very clear that this particular order not only had arrived in the Southeast prior to your arrival but was actually carried out. Did you want to say with that statement that had you been there you would not have carried it out; or for what reason at all did you make that statement?
A The order had been with the troops before my time. For me to pass on that order -- that is to say, whether I would have passed it on or not had I been down in the Balkans at an earlier time. I have not mentioned by one word. The purpose of my statement was merely to say that that order was with the troops before my time, that it had reached them without my doing anything and that I was not in a position to rescind it. But I never asserted that order had been carried out. I never said that all because is my area it was not carried out.
Q Witness, this order was carried out in the Southeast, was it not?
A I can see from the documents that in single cases it was applied but not in my area and not by my troops.
Q Witness, had you been down there, had you carried it out when it arrived, would you have considered it a criminal order?
A These are two questions. Let me answer the first one. I am unable to say what I would have done because I am unable to put myself into the position prevailing in 1941. I would have to do this in order to judge what I would have done in that period of time. This is a theory which lacks all foundation.
As for the question whether the order is criminal, we had never troubled to think whether an order which reached us from the highest authority was criminal because we did not assume that to be the case from the word "go."
If I may say something in particular about this order, a reprisal ratio is laid down therein. It is my opinion and conviction that reprisal measures of this sort are not forbidden by International Law.
The only thing which may be debatable is the extend and the ratio. Here again we find in International Law no special indications. Now, if my superior officer goes and says, "I interpreted the latitude granted in International Law to 'this or 'that' degree -- namely, that I decide on the ratio of 1 to 50," and says himself, "This is a measure of extreme harshness dictated by 'this or that' special circumstance," I am in no position of telling him, "You are wrong and I am right," in a field where no one hard and fast rule exists but where opinion is the decisive factor. I had to come to the conclusion that an order of this sort cannot be criminal but that it is unusually harsh as it admits itself. I am not the man who likes unusual harshness. Therefore, I could not do anything else had I come into that position but to say "yes" and carry out the order in the way which would have regarded as proper and that is what we did. We never reached the actual ratio in my area but we kept the figures extremely low, as I have described in such detail. Those low figures were unavoidable and justified under all circumstances.
Q If I understood you right, witness, there is no question as to the legality of reprisal measures according to your knowledge as far as International Law is concerned. There could only be some doubt, you said, as to the extent of the ratio to be applied. Is that correct?
A Yes, that is quite right.
Q You also said that you couldn't answer my question what you would have done in 1941 because you were not familiar with the conditions at that time. Do you want to say, witness, that the conditions pertaining to reprisal measures in the Southeast had materially changed as far as reprisal measures were concerned during the time that you got down there?
A I am not able to say that because I did not know the conditions of the preceding period. All I know is that in my area they had not changed.
Q Witness, you have, if I understand you right on the basis of your previous testimony, confidence in Hitler's ability as a political and military leader?
A Up to a certain period of time, then that confidence vanished.
Q Now, in the time you refer to, is that 1938?
AAs far as military leadership is concerned; I do not speak of political leadership here because that is no business of mine and I could not form any judgment about it. As to military leadership, this confidence lasted up until Spring 1942.
Q And when you talk about confidence along military lines which you placed in the Fuehrer, would you include an order of this nature along military lines? I mean this is a military order. One could not call it a legal order.
A Well, I have now spoken of the point of view of military leadership alone, military operations, for instance.
Q I understood you correctly, witness. I merely meant whether or not this type of order of necessity is a matter of military operations, at least borders that what you and I understand of military operations. It's not a matter dealing with, shall I say, fish or automobiles. It deals with War. It deals with the conduct of war, does it not?
A This matter is not a military matter, not a purely military matter. This order deals with a set of facts where no questions of confidence or no confidence enter. In scale of large scale operations, the result of which is still unknown, the word "confidence" is important.
Q Witness, you stated that in, I believe, 1878 the Austro-Hungarian monarchy used 18 infantry divisions of something like 20 or 23 thousand men each to occupy Bosnia in peacetime.
A Well, what I said was, I believe to recall, that it was about 18 divisions. At any rate, it was a very large power in proportion to the small country which the monarchy could afford because it was in a state of peace and had all its forces at its disposal.
Q I won't try to contest the number of divisions within, if you wish, 30 percent one way or the other; but you did make a statement as far as the great number of men and divisions were concerned which the Austro-Hungarians employed to occupy Bosnia in order to possibly prevent an outbreak on the part of the partisans or a revolt.
A Not in order to prevent a revolt but in order to suppress it. In Bosnia itself there was what the Hague Land Warfare Conventions call "lever en masse." A country which had not been occupied rose in arms, and they were suppressed. And the numbers of troops used here in order to finish the business as swiftly and as economically as possible, with regard to lives, was numerically the most extreme measure which you can imagine.
Q Witness, you made some geographical and numerical comparisons and stated that on the same basis, taking the area of the Second Panzer Division into consideration, you would have had to use approximately 150 German divisions. Isn't that right?
A That is an improvised figure for this area, some extreme type of occupation would have been practiced as was done by the Austro-Hungary Monarchy in 1878 and in Bosnia and Herzegowina. I also added that in wartime you couldn't afford a think like that.
Q And I believe you made these comparisons to more or less rebut the statement that there weren't enough troops down there. And, also, where are you going to draw the border-line? You made it for this purpose did you now?
A Yes, I used the example in connection with the question what conduct of war against the partisans would have been feasible. I replied "Only on condition that you had enormously numerous troops at your disposal......you would have been in a position to put troops into almost every village and province in order to prevent all activities on the part of the partisans and so that you could guard all objectives which might have been exposed to attack, such as railroads, roads, bridges, etc." But that number of troops, needless to say, was not at our disposal, and that should a nation at war even had the troops it would have been, from the point of view of the Supreme leadership, entirely wrong to tie down a force of that quantity for purely defensive purposes." That I think was the context.
Q Now, Witness, that comparisons you drew are somewhat lame because in 1878 airplanes, radio, mobility, tanks, machine guns, and etc. were unknown to modern armies. So I think that to say that you had needed 150 divisions to achieve a similar result as the troops of the AustrianHungarian Empire isn't quite correct in fact is it? In 1943? There is 65 years of development between these two statements.
A I only took a very vague comparison not in order to arrive at the result that we would have needed 150 divisions, but only to stress that you did need enormous power and forces because we were not only concerned with arms and weapons. We had only to think of the human element which had to be prescribed from partisan activity. And they were scattered all over the country. They lived everywhere, even in the smallest villages.
Q Witness, do you know whether the OKW or the "Herresgruppe", and particularly yourself, as a student of history, ever took into consideration the fact that these people who lived down there for centuries are known for their legendary courage, their will to freedom? Did you ever give any thought to that when you were faced with partisan warfare? In modern war, as you know, such psychological factors have to be taken into consideration, unless one does not want to commit suicide. Isn't that right?
A Certainly the psychological factors must be weighed most carefully. We were of the conviction that the partisans looked back on a century-old tradition in their fight and that they distinguished themselves with special bravery, love of freedom, and what you have overlooked, particular cruelty. Bravery and cruelty had to be taken into consideration, but what part the love of freedom played in this situation, we could not understand because we went down there as liberators. We liberated Croatia from the Yugoslav yoke. There was not one Croat who did not share that conviction. The fight of the partisans was not spurred by love of freedom so that they fought against us for for this reason, but as I have explained it was a fight directed byTito who had been sent from Moscow to the Balkans, who on behalf of Moscow organized these elements in Croatia and led them into the fight against us.
You could not call this a battle for freedom.
Q Witness, the Poglavnik you have reference to was the notorious Dr. Ante Pavelic. Isn't that right?
A I don't know what you are driving at when you use the term "notorious." He was not a friend of mine, as you know, but why he should be notorious is more than I can know.
Q Dr. Ante Pavelic was trained and lived in Italy did he not? He was trained by the fascist government of Mussolini?
A I don't know. Trained in what direction. He was a grown-up man, a highly educated man.
Q Well, he was indoctrinated with fascist ideology in Italy was he not?
A Yes, well, I have to assume that, I suppose.
Q And I think you know too that he was involved in the murder of King Alexander of Yugoslavia in Marseilles in 1934, don't you?
A No, I don't know that.
Q This is complete news to you, Witness?
A Yes, that is entirely new to me. There were in his immediate surroundings a man called General Percevic, and it was he, as I was told, who was somehow for other connected with the assassination. But I never heard that about Pavelic.
Q Witness, the Ustasha was the personal body guard of this Ante Pavelic was it not?
A Not all of it. He had a division as his body guard which was stationed in Zagreb, and near Zagreb, and the other Ustasha battalions, which were stationed all over the country, had nothing to do with body guarding.
Q But some of these Ustasha units were trained in Italy weren't they?
A I heard that, yes.
Q And could you tell us, Witness, whether or not you know that this Ante Pavelic was, so to speak, a political protege of Mussolini?
A I assume that definitely; I think that is quite correct, and that actually is the only explanation as to why Pavelic came to Croatia at all.
Q Witness, you stated that the Croatian Government was an ally of the German Government. Is that right?
A Yes.
Q And you said furthermore that its citizens, who were used to work for the Germans or for the German war effort, were constantly not used in violation of International Law because by supporting the German war effort they are supporting their own war effort. Did you make that statement?
A Yes, and it's quite true too.
Q Witness, do you know anything about whether or not you had an operational area in Croatia? In other words, was Croatia considered an operational area after 1943?
A No, Croatia would have become an operation area in the event of a landing.
At the time when we were concerned only with partisan fighting there was no reason for declaring Croatia an operational area. That would have caused an enormous amount of complications. In a hostile country it would have been very simple. It would have been declared as such, and the Commander in Chief would have been given executive power. In an Allied and sovereign country the Croatian Government itself was the holder of the executive power just as much as the Albanian Government in Albania.
Q Witness, Croatia, was partially occupied by German troops I understood you to say. Is that right?
A Yes.
Q Was Croatia an independent state before German troops occupied it? I don't mean historically, but just a day before you got in there, or was it part of Yugoslavia?
A It was part of Yugoslavia at that time.
Q Now, have you ever heard about the fact of creating an independent government in an occupied area dominated by an occupation power? In other words, you talked about the independent government which had executive powers and the rights to decide over life and death for its own citizens, yet this government was founded, was it not, as a result of the occupation of German forces? Just what is your conception on international law in regard to this question, if you can answer it?
A Well, that's quite simple to answer. The German troops by occupying Croatia had liberated the country. The country appointed its government and that government began to function while the German troops were in Croatia. I do not see any reason why this should be inadmissible.
Q Witness, I now come to the Italian surrender. You know, do you not, that on September 8, 1943, Marshal Badoglio, in his own behalf as Commander in Chief of the Italian Army and on behalf of the King of Italy, signed an unconditional surrender pact or agreement with representatives of the Allies? That fact was known to you, was it not?
A Yes, I only know also that it wasn't on the 8th but on the 3rd of September; it was announced on the 8th of September.
Q That much the better. Now, witness, will you explain to the Court your trend of thought when you approached after the surrender terms, and you already told us now that it was on September 3rd, the Commander in Chief of the Army Group Este and asked him to make a special deal with you despite the fact that all Italian forces already had surrender ed to the Allies?