DR. SAUTER: The next document, is Geitner No. 202, Document Book VII, on page 5, an affidavit by Walter Paul Foerster. I shall not read this affidavit. It deals with the political attitude of the defendant Curt von Geitner. It is to be Exhibit 175.
The next document which I offer the Tribunal is a staff order. I should like to add with regard to this document to make it clear why this staff order was included in the document book. This staff order is in itself not relevant to the case of Geitner, but I have submitted it to the court so that the Tribunal may see how such an order is phrased and signed by the chief of staff, if it really is an order issued by the chief of staff himself. In this order which happens to be -- to originate from the XXII Mountain Corps Headquarters, it is stated -- if the Chief of Staff issued an order in his capacity as chief of staff, then the heading of the document, on page 7, reads as you can see from the introduction, "Corps Headquarters XXII(Mountain) Corps, the Chief of the General Staff". And the signature merely shows the name of the chief of staff. If you compare these two types of orders.
MR. FULKERSON: I would like to renew my protest against this exegesis at this time.
JUDGE BURKE: You may proceed.
DR. SAUTER: When interrogated, personally, General von Geitner stated among other things, if he merely transmitted an order issued by the commanding general, he did that in a specific way in order to make it clear so that the troops could see that it was an order issued by the commanding officer, merely forwarded and transmitted by the chief of staff. That has a certain importance in the case of Geitner, as in the case of all of the defendants who are indicted in their individual capacity as chief of staff, and I request the tribunal to compare other documents with this document submitted by me; other documents in which defendant von Geitner transmitted an order issued by the commanding officer, in his capacity as chief of staff, as, for instance, in Document 973, Exhibit 246, in Book 10, where Your Honor will see this kind of document.
The next document is an affidavit by Hans Zoeberlein, on page 9 of Document Book 7, to be Exhibit 177. An affidavit by Hans Zoeberlein, who at the time was -- encircled in Belgrade in October, 1944, and who describes in a very graphic way his experiences at that time.
The next document will be found on page 14 of Document Book 7. It is document 205. It is an affidavit by DR. Wolfgang Thomich, duly certified and signed by him, and sworn to. This document 205 will become Exhibit 178.
THE PRESIDENT: Pardon me, Dr. Sauter. I checked my own record, and the Deputy Secretary General has checked with their office, and prior to commencing with this document book your last exhibit was 172. In order that there will not be a break in the record, may I suggest that you number this one 173, inasmuch as you have previously stated that your first exhibit was 174.
DR. SAUTER: Very well.
THE PRESIDENT: This exhibit then, Document No. 205, Doc. Book VII will become Exhibit No. 173.
DR. SAUTER: Certainly. This document is an affidavit. Attached to it is a photograph. The affidavit reads: "I, the undersigned, Attorney at Law, Dr. Wolfgang Thomich, Graz, Austrian citizen, hereby declare the following in lieu of an oath, having been warned that I render myself liable to punishment if I give a false affidavit, to be submitted to the American Military Tribunal No. V in Nuernberg:
"The film of the above photograph was captured during an operation, which the units of the 718th Infantry Division executed in 1942 and 1943 against Marshall Tito's partisan forces in Croatia. It is possible that it was found in a captured staff headquarters building. Several prints have been made from this film.
The above picture has been developed from the captured film. I know this because I was a member of the 718th Infantry Division Staff at that time, and had the copies made according to orders received."
The signature of the witness is certified and authenticated by the appropriate Austrian authority. The photograph shows that the troops of the Serbian partisans did not wear a uniform and that women were also with the troops.
Court No. V, Case No. VII.
DR. SAUTER: The last document to be found in Geitner Document Book VII, it is on page 15 of Document Book VII, and it is Document 206 to be Exhibit 178.
MR. FULKERSON: I would like to object to the introduction of this photograph from a periodical on the same grounds that we have advanced for the exclusion of newspaper clippings.
DR. SAUTER: This is the only document -
JUDGE BURKE: The objection will be sustained.
DR. SAUTER: This is the only document which I have submitted which is a newspaper cutting -- a magazine cutting. My reason for submitting it is that the photograph itself bears the original imprint, that is, the caption shows without any doubt what the photo is supposed to depict, to wit, "British soldiers at the burning down of a village", the name is also stated, it is the village of Bekasi in Japan, "as a reprisal measure". According to my statement, this photo, which is taken from an American magazine, is a considerable contribution to the question of the International admissibility of reprisal measures, and the conception which prevails with regard to that topic.
JUDGE BURKE: The mind of the Tribunal has not been changed and the objection will be sustained.
DR. SAUTER: In this case, of course, I shall have to withdraw Exhibit Number 178 from this document. If it please the Tribunal, I shall now finish submission of documents in the case of the defendant, Geitner.
JUDGE BURKE: Very well, Just a minute, Dr. Sauter, the presiding judge wishes to ask you some questions.
THE PRESIDENT: The Deputy Secretary General called my attention Friday to some question as to the numbering of your documents concerning Lanz. Did you check any further on that, Secretary?
SECRETARY GENERAL: Yes, Sir, they had been introduced on this subject first -
THE PRESIDENT: And should they be numbered as of 178 or--
SECRETARY GENERAL: This is correct. It started that day those documents were submitted-
DR. SAUTER: If it please the Tribunal, I think this question has previously been discussed with the Secretary General, and we have agreed as to the method how the documents, Lanz, are to be paginated. I don't think there is any error now....
SECRETARY GENERAL: There is on these two.
THE PRESIDENT: There is a duplication of the exhibit numbers 179 and 180. I am informed that on December the 5th Document Number 155 was offered as Exhibit 179 and Document 158 was offered on December 1 as Exhibit 179 and Document 158 was offered on Decemb10.160.0.12910.10.160.0.129r 1 as Exhibit 180. Then on Thursday, I believe, January the 8th, you commenced again with the number Exhibit 179 and continued with the next Exhibit 180. Consequently, there are two exhibit numbers 179 and 180.
DR. SAUTER: That is correct. That has already been discussed with the Secretary General.
THE PRESIDENT: Purely for the record, however, Dr. Sauter, some statement should be made in the record correcting the numbering, and I do not know as to what arrangement you may have made with the Deputy Secretary General for the numbering, but such arrangements and such plan as you have now comtemplated should be stated in the record.
JUDGE BURKE: You may make a statement in the opening of the afternoon session on whatever you may agree on it.
THE PRESIDENT; You work that out with the Secretary General, and make the statement for the record at 1:30.
DR. SAUTER: Certainly, Your Honor.
THE PRESIDENT: Very well, Dr. Mueller-Torgow?
DR. MUELLER-TORGOW: If it please the Tribunal, I have two more documents to submit, which are in the supplement to Document Book VI of Felmy. The first document Number 178 is to be Exhibit 133. This document concerns the official responsibility on certain topics. It is a statement in answer to questions directed by Major Schaefer towards the then Greek Prime Minister, Sofoulis. The affiant describes in this statements-
MR. FULKERSON: In the first place, we don't have the questions, so it is rather difficult to tell what these statements are responsive to. In the second place, this is not sworn to. In the third place, so far as I can tell, it is completely irrelevant because it concerns only the SS and the SD, so I, therefore, object to its introduction.
JUDGE BURKE: I don't find the document to which you are making reference, Dr. Mueller-Torgow.
DR. MUELLER-TORGOW: It is contained in the supplement to Document Book 6, on page 1. It is Document Number 178.
JUDGE BURKE: Thank you very much.
DR. MUELLER-TORGOW: If it please the Tribunal, may I state in reply to the prosecution, in answering the questions directed by Major Schaefer to Mr. Sofoulis in the proper manner, it is not an affidavit. This kind of statement, there is a different procedure for such statements compared with affidavits. The answers are not sworn to according to the regulations. It is a simple, ordinary statement, and this document, therefore, complies with the requirements. As to its contents, General Felmy, even if he is not named, he is referred to in the last paragraph. The affiant describes his arrest in May 1944 by the German Security Service SD, and his experiences in the Chaidari jail. In the letter by Major Schaefer, an inquiry had been made, among other things, whether General Felmy had been instrumental in securing the release of Sofoulis on the 8th of November 1944.
This question has been answered in the last paragraph which reads, -- it is paragraph 6, -- "What I know is the fact that the Greek Minister President at the time--"
JUDGE BURKE: An objection has been made to the introduction of the exhibit. Wait just a minute, please. Why was the affidavit not sworn to?
DR. MUELLER-TORGOW: If it please the Tribunal, I have already stated that there is no provision for the fact that the questions to these answers had to be sworn to.
JUDGE BURKE: Mr. Fulkerson.
MR. FULKERSON: I can see no reason why the oath should be dispensed with merely because it is in question and answer form. It hasn't been dispensed with in other cases here by so-called affidavits which are really in the form of dispositions, interrogations, and submitted by other defense counsel. I actually know that there is a Major Schaefer in the Defense Information Center, and I assume that this is the same man whose name appears on this document, out even so, you don't know what questions he asked from this document. And, furthermore, as I say, the whole contents of it are utterly irrelevant.
JUDGE BURKE: The objection will be sustained.
DR. MUELLER-TORGOW: The next document, which will also be the last, is Document 179, to be Exhibit 133. It is an affidavit by Dr. Hans Werner Giesecke. In this statement he comments on the so-called operation Distomon. I should like to read this affidavit:
From about 6 January 1944 until the retreat from Greece I was a member of the Staff of the LXVIII Army Corps as a military judge. Regarding the counts against General of the Air Force Felmy I can only make statements in as far as the mentioned events happened during the period of my service with the LXVIII Army Corps.
I still remember exactly the event of Distomon. The unit leader of the Police Regiment had made an entirely false report. From a report by the Secret Field Police which had been presented to the Corps, it became clear that it was not a combat measure, as the unit leader described it, as far as I remember, but an unprovoked massacre. The Commanding General was furiously indignant about the event and ordered me, as his legal adviser, to clarify the affair. The investigation I made by interrogating the Secret Field Police clerk and possibly other members of the Army unmistakably revealed that the report by the police regiment had been incorrect. It appeared that there was no question of a military operation in Distomon; it had not even been ascertained that the village inhabitants were partisans or connected with such. The protest of the Secret Field Police clerk to the unit leader had been utterly in vain. As the Corps had no jurisdiction over the Police Regiment, proceedings against the perpetrators could not be initiated. For this reason the event, with a comment, was submitted to Army Group E. I do not know what steps were taken by the latter.
The action of the Police Regiment was not covered by any order of the Corps. It rather was a matter of non-compliance with basic orders on the sparing of harmless civilians, that is to say, of measures contrary to international law. Therefore, in my opinion, the Corps could not be held responsible for them. By the report which the latter submitted to the Army Group, according to my recollection, it clearly dissociated itself from the action.
It is not correct that by contentint himself with settling the matter of the false report by disciplinary action, General Felmy agreed to judge the entire case in the same light. My statements regarding the happening would on their own completely exclude this. I do not recall any more today why the false report should have been punished by disciplinary action. But I can only imagine that the lack of jurisdiction by the Corps over the unit leader would have excluded further measures at any rate and that General Felmy in his always gentlemanly attitude towards his subordinates did not judge his own deception so seriously in comparison with the reported event itself. For a complete understanding I furthermore have to point out the following: A declaration of agreement with disciplinary action had a different significance for a member of the Wehrmacht under the jurisdiction of the SS than for a member of the troops which were subordinate to the Corps in a military sense. For the latter, this would have meant the waiving, by the judicial authority, of any legal punishment, which was not and could not be the case for the former. Also for this reason the fact that General Felmy consented to a merely disciplinary dealing with the false report, does not allow of any conclusions detrimental to him.
Besides, General Felmy as a superior and judicial authority always thought and acted justly and ever had a warm and sympathetic heart for all his subordinates. In his measures as a judicial overlord, he was rather too indulgent than too hard. All of us who made his acquaintance always respected and highly esteemed him as a superior and as a man. In his quality as judicial authority he had no dealings with the Greek civilian population. But from my conversations with him I know that he understood the predicaments of the Greek people and that in many cases he personally did not approve of measures taken by other authorities, because they were too hard.
DR. MUELLER-TORGOW: If it please the Tribunal, I have now finished with my presentation of documents. At the moment none of my colleagues is present who would have any more documents to submit. Dr. Laternser has asked me to state that in the afternoon session, that is, at 1:30, he would be in a position to call two witnesses, if it please the Tribunal.
JUDGE BURKE: Is there no further matter to be presented to the Tribunal at this time?
DR. MUELLER-TORGOW: Not for the moment, Your Honor.
JUDGE BURKE: The Tribunal will stand adjourned until half past 1 this afternoon.
(A recess was taken until 1330 hours).
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 12 January, 1948.)
The MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Pardon me just a moment, Dr. Sauter.
At the morning -- or rather, during the noon -- recess and after my return from lunch there was brought to my office a supplemental notice of demand by prosecution for production of additional defense affiants for cross examination. These affiants are Heinrich von Behr, B e h r, and Franz von Harling, H a r l i n g.
I am informed that the affiant von Behr gave his affidavit on behalf of the defendant Dehner and the affiant von Harling gave his affidavit for the defendant Weichs or List -- at least, it was presented by Dr. Laternser.
There is further information presented to the Tribunal to the effect that these affiants lived considerable distance from Nuernberg and that it will be impossible to obtain the presence of these affiants before tomorrow afternoon. Under the circumstances, therefore, the calling of these affiants for cross examination will be permitted after the -during such time as the prosecution may be presenting its rebuttal testimony. That is the only way in which these men can be brought here and their cross examination made possible without a delay and the Tribunal will permit that to be done.
DR. SAUTER: Your Honor
MR. FULKERSON: I have one correction, your Honor; I believe the affidavits of von Harling were introduced on behalf of the defendant Foertsch rather than Weichs or List.
DR. LATERNSER: (Counsel for defendants List and von Weichs): That is what I wanted to say, your Honor. I did not present an affidavit by Colonel von Harling.
DR. SAUTER: (Counsel for defendant von Geitner): Your Honor, in the meantime, I have questioned the defendants again about the affiant von Hurling and I have discovered that one affidavit by this affiant has been submitted for the defendant General Foertsch.
I don't know the number -- and one affidavit for the defendant von Geitner; and this is Geitner Document No. 57, Exhibit No. 43. That is Geitner Document No. 57, Exhibit 43; but at the moment I don't know the number for the Foertsch document. His defense counsel isn't here at the moment.
With regard to the affiant von Behr, General Dehner told me that the defense counsel for General Dehner has repeatedly sent telegrams to von Behr asking him to come here but the answer was to the effect that the affiant is so ill that he is not able to come to Nuernberg.
That is what I wanted to say for the information of the Tribunal and of the Prosecution.
THE PRESIDENT: Without reflection on your statement, Dr. Sauter or General Dehner, I imagine it will be necessary for the Defense Center to check on the matter so that we may be further informed as to whether or not he can be present. The information as stated relative to the manner in which the cross examination of these witnesses will be had needs no further comment from the Tribunal.
DR. SAUTER: Your Honor, the Defense Counsel are not quite sure, that is, the Defense Counsel engaged in this trial here are not quite sure whether the prosecution is now justified to ask for cross examination of such witnesses whose affidavits were already presented some weeks ago and where at the time the Prosecution did not ask for cross examination. We are of the opinion that after such a long time cross examination by the Prosecution cannot now be demanded but of course we are not quite clear whether this opinion is in agreement with the regulation of this Tribunal. If the Tribunal shares our opinion -that is, that a cross examination cannot be demanded now -- then of course we must protest against the fact that this cross examination is now asked for.
THE PRESIDENT: I am informed that the affidavit of von Behr was only presented this morning or yesterday. am I correct in that statement?
MR. FULKERSON: Yes, Your Honor, this morning I believe, and the affidavit is dated the 15th of December.
DR. SAUTER: But affidavits by the affiant von Harling were certainly submitted already some time ago.
THE PRESIDENT: That matter is one for the Tribunal to decide as to the time of its presentation of the application, and under the circumstances the cross examination will be permitted at such time as they can obtain this witness and during the period of rebuttal, if such is necessary.
DR. SAUTER: Then, Your Honor, with regard to another point I would like to make a statement.
I have spoken with your Honor and with the Secretary General about this matter during the noon recess and I would like to announce the result for the record. Document Lanz No. 192, I repeat Lanz No. 192, receives Exhibit No. 184; and Lanz Document No. 193 receives Exhibit No. Lanz 185. I would like to correct this so that the same number doesn't appear twice. And then, Your Honor, I have discovered that in Document Book Geitner V, Document No. 144 -- it is on page 89 of Geitner Document Book V -- at the time this document was not in the possession of the Tribunal, through a mistake on the part of the Translating Department. This Document 144 was contained in the German Document Book but by mistake it was not included in the English Document Book. This Document No. 144 in Geitner Document Book V, page 89 , is an English excerpt of Various passages from the Rules of Land Warfare. In the meantime, I have received the English translation. I have submitted the English translation, or rather the English original, to the Tribunal and to the Prosecution in sufficient copies and now I would like to submit this Document 144 to the Tribunal as an exhibit on behalf of the defendant Geitner.
MR. FULKERSON: Is this a new document that you are now putting in or is this one that has already been admitted?
DR. SAUTER: No. At the time, Your Honor, in the session of the 22nd of December, this document which is an excerpt from the Rules of Land Warfare, I couldn't present it at the time because, by mistake on the part of the Translating Department, it wasn't included in the English document book. In the meantime, however, these English copies have been handed to the Tribunal and to the prosecution and that is why I am submitting this Document 144 to the Tribunal at this moment.
MR. FULKERSON: If it is being presented here for the first time, I would like to object to it because this again is something of which the Tribunal is supposed to take judicial notice; and further if it has any place that proper place for it is in a brief or in a legal argument and not as a piece of evidence.
PRESIDING JUDGE BURKE: What Exhibit number did you wish to give it, Dr. Sauter? What number did you wish to offer it as?
DR. SAUTER: This becomes Geitner Exhibit No. 178. That is the last exhibit number for Geitner. I have not submitted this document twice, but only once, because I couldn't submit it earlier.
PRESIDING JUDGE BURKE: The objection will be overruled. The document will be admitted as Exhibit 178 von Geitner.
DR. SAUTER: This brings me to the final end of my case in chief for the defendant Geitner.
PRESIDING JUDGE BURKE: Dr. Sauter, I think your statement covered the situation but do you rest on behalf of the defendant von Geitner?
DR. SAUTER: Yes, Your Honor.
PRESIDING JUDGE BURKE: Very good.
DR. GAWLIK: Dr. Gawlik for the defendant General Dehner. Your Honor, with regard to the application of the Prosecution to bring the affiant Behr here for cross examination, I would like to state the following. The affiant Behr is ill. He is one of those witnesses whom I myself invited to come here and whom I wish to examine myself. This morning I received a letter from the affiant Behr in which he states that he is ill in bed and that he cannot appear and for this reason I submitted the affidavit by Behr.
PRESIDING JUDGE BURKE: He obviously can't be here. Has the affidavit been accepted as an exhibit?
DR. GAWLIK: Yes, Your Honor.
PRESIDING JUDGE BURKE: You may proceed.
DR. GAWLIK: I have no further statements to make, Your Honor.
DR. LATERNSER: Your Honor, I would now like to examine two witnesses. They are simple people from the countryside and perhaps the examination will not go as smoothly as usual. The first witness I would like to call is Xavier Hirschmann.
XAVER HIRSCHMANN, a witness took the stand and testified as follows:
PRESIDING JUDGE BURKE: You will please raise your right hand and repeat the oath. 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: You may be seated.
DIRECT EXAMINATION BY DR. LATERNSER:
Q. Herr Hirschmann, would you please state your full name.
A. Hirschmann, Xaver; Pfeffershofen.
Q. Witness, when I ask you a question then you must wait a little before you answer because the question has to be translated into English. When were you born?
A. The 13th of April, 1901.
Q. And where? Would you please spell the name?
A. D-a-l-o-h-n.
Q. What is your religion.
A. Catholic.
Q. What is your profession?
A. Farmer.
Q. Where?
A. In Pfeffershofen.
Q. How long long have you lived in Pfeffershofen?
A. Since 1902.
Q. Could you speak just a little louder?
A. Yes, I will.
Q. When was Pfeffershofen occupied by American troops?
A. On the 18th of April, 1945.
Q. Was there fighting for Pfeffershofen on this date?
A. No.
Q. How long did the troops remain in Pfeffershofen on this day?
A. One or two hours.
Q. What did they do then?
A. They withdrew into the next locality.
Q. Did a number of occupying troops remain in Pfeffershofen on this day?
A. No.
Q. What happened on the next day?
A. They came back again.
Q. How long did they remain in Pfeffershofen on this day?
A. Also one or two hours.
Q. Did an occupation remain behind then?
A. No, nobody remained behind.
Q. Then what happened on the next day? And which day was that?
A. That was Friday.
Q. Do you know what the date was on this day?
A. That was the 20th of April.
Q. Well, then, what happened on the 20th of April?
A. On the 20th of April, no American troops came.
Q. But what happened on the 20th?
A. Well towards darkness, the SS came.
Q. What kind of SS? What happened when the SS came?
A. A barn was shot up and thereby set on fire.
Q. Yes, and where were you when the shooting was going on by the SS on this day?
A. I was outside the village.
MR. FULKERSON: Until now there has been no mention of any shooting. Unless there has been a wrong translation.
PRESIDING JUDGE BURKE: Has there been a wrong translation, Dr. Laternser?
DR. LATERNSER: Your Honor, I am afraid I can't say because I didn't follow the translation.
PRESIDING JUDGE BURKE: Mr. Fulkerson said that nothing in the testimony had indicated up to this time that any shooting had occurred.
DR. LATERNSER: Yes, I think there was mention of shooting. I will repeat my question to straighten it out.
BY DR. LATERNSER:
Q. Herr Hirschmann, you said that on Friday, the 20th of April, SS arrived.
A. Yes.
Q. What did the SS do and what was the strength of the SS troops?
How many people were there?
A. Well, I didn't see them myself because I wasn't in the village.
Q. Where were they?
A. They were near the in of our village.
Q. Where were you yourself?
A. I was about three or four hundred meters away.
Q. What did you hear?
A. Through my relatives, you mean?
Q. Yes, through your relatives.
A. Well, one of my relatives was there and he said that the SS -
MR. FULKERSON: Your Honor, please, I would like to object. This is hearsay, as clear as has ever been produced in a court, and of the most unreliable kind.
DR. LATERNSER: I attach no particular importance to this point, Your Honor. I will get to the most important point later on. But the Prosecution has no reason to protest against this as being hearsay after their whole case, in many phases, depended on hearsay. I will ask another question.
PRESIDING JUDGE BURKE: Instruct the witness the testify only to matters of his own personal knowledge.
DR. LATERNSER: Herr Hirschmann, when I ask you, please only talk about the things which you yourself saw.
THE WITNESS: Yes, I will do that.
BY DR. LATERNSER:
Q. Well, then, what happened on the next day? We were talking about Friday, the 20th. What happened on Saturday, the 21st?
A. On Saturday, in the early morning, the Americans came.
Q. What kind of troops were they?
A. Well, infantry came, and tanks.
Q. Were there a lot of Americans?
A. Yes, there were rather a lot.
Q. About how many?
A. Well, I really can't say exactly, but there were quite a few.
Q. How many tanks were there?
A. There were about fifteen or twenty; but there might have been more.
Q. Where were you when these troops arrived on the 21st of April?
A. When the troops arrived, I was still in the village. When the tanks came we were lined up along the street.
Q. When did you talk to American troops for the first time? When did you come into contact with them?
A. That was in the early morning, perhaps at half past six.
Q. And then did you talk with an American soldier?
A. Yes.
Q. And what did he tell you?
A. He told me that German soldier shot an American and village kaput (indicating). .
Q. What did this sign which you just made meant?
A. It meant that they were to set the village on fire.
Q. How did he express that?
A. Well, he had a match. He lit a match in his hand.
Q. And then what did you do?
A. I went home and then I asked a few questions at home and then I went out again to look after my cattle.
Q. Where were your cattle?
A. That was outside in the field.
Q. What did you want to do with your cattle then?