Q Something more: What had been set afire in Pfeffershofen? The whole of Pfeffershofen?
A The whole of Pfeffershofen, the house and barns and accessories-everything with the exception of the small church. That was not burned down -- but they took the candles away.
DR. LATERNSER: I have no more questions.
MR. FULKERSON: No questions, your Honors.
THE PRESIDENT: Any members of the defense counsels itself staff wish to question this witness? Do any members of the Tribunal wish to question this witness? The witness may be excused.
May I inquire as to whether or not there are any other document books now ready which may be presented by defense counsel?
DR. LATERNSER: (Counsel for defendants List and von Weichs): May it please the Tribunal, I have been informed that further document books have been translated. They have been prepared so that the further documents may now be submitted.
MR. FENSTERMACHER: If I may interrupt for just a moment, your Honors will recall -- I think last Monday or Tuesday -- certain excerpts from the personal diary of the defendant Field Marshal List were offered and received in evidence. At that time I asked permission to preserve my right to cross examine the defendant when the excerpts were offered until the remaining portions of the diary could be translated. Later that afternoon Dr. Laternser turned over to me the entire diary and it was sent down to the Language Division for the remaining portions to be translated.
That has taken them a good deal of time because the notes in the diary were written in German script which is very difficult to interpret and also because, I understand, there were certain notations which appeared to be in shorthand which had to be transcribed. There was no one in the language Division to do that but we succeeded in having a member of the German Court Interpreter Staff transcript these notations, this afternoon I was presented to the German transcript of the portions of the diary which have not been translated and introduced into evidence.
I shall be prepared tomorrow morning to cross examine the defendant List on the diary which was not translated.
THE PRESIDENT: Very well.
DR. LATERNSER: If it please the Tribunal may I comment on this? I should like to submit that eight days ago I insisted on an immediate cross examination. I recall that the Tribunal ruled that a cross examination was to be begun within 24 hours. The Prosecution did not avail itself of these 24 hours. On the contrary they needed a whole week in order to explain that they were now at last prepared to begin the cross examination.
I should like to state that the Prosecution has gone too far in exploiting the right which the Court has conceded to them and I request that the Prosecution be now precluded from cross examination because they have trespassed on the rights which were given to them, a right which ought to be exercised immediately within a time limit of 24 hours perscribed and cannot be extended by a whole week.
THE PRESIDENT: I think we will have to be conscious of the fact, all of us, that with the difference of languages it necessarily must take some time to have these documents translated and transcribed and go through the necessary detail of presenting them in such a way that not only the Tribunal but interested counsel may have the benefit of a copy in the language with which they are familiar.
It is quite true that the Tribunal -- and I believe I was presiding at that time -- made a statement that the examination should be made within a certain limit of time but that ruling was made with the thought that the document would be so translated that interested counsel could make the necessary examination.
We have endeavored to be liberal, both to the Defense and to the Prosecution, and I think, under the circumstances, the right which was previously reserved will be granted to the Prosecution tomorrow morning.
DR. GAWLIK: (Counsel for the defendant Dehner): If it please the Tribunal, I don't know whether Document Book is already available in translation. If it is, I should like to present now Document Book IX.
THE PRESIDENT: The document book is not now in the possession of the Tribunal. The deputy secretary general has been checking on it for the last few minutes. The Tribunal will be in recess for a few minutes subject to call.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. GAWLIK: On behalf of General Dehner, if it please the Tribunal, I wish to submit Document Book Dehner No. IX, first document Dehner No. 41. This document is to be Exhibit Dehner 36. It is on pages 116 and 117, Dehner Document Book IX. It is an affidavit by Dr. Oskar Merrem. I submit this affidavit as purporting to establish that the bands in the Southeastern area, particularly in Croatia, were not to be considered as beliggerents within the meaning of the rules of Land Warfare. I shall proceed to quote from the affidavit, the first passage, in order to establish that the affiant had the necessary knowledge in order to testify as to those facts which he alleged in the affidavit.
"From the middle of June 1941 until January 1945 I was special missions Staff Officer (at first Lieutenant, later Captain) in the Staff of Army Group E and F, in Department I c. My first job was to keep situation charts, since about the late summer of 1943 I had to draw up the I c daily report to the High Command of the Army. Today I am Judge in charge of a civil division at the local Court at Cologne.
"I can state the following concerning the distinctive marks and made of fighting of the bands in the Balkans area:
"At first the bands consisted exclusively of civilians who carried hidden weapons. Owing to the constantly increasing bitterness of the fight between the national and Communist bands the members of the bands started to wear distinctive badges, mostly on their caps.
The Serbian national bands wore the Serbian double Eagle. The Communist bands the Soviet star. Apart from this there was no standard uniform even as late as the end of 1944. The members of the bands wore wither civilian clothes or uniforms or parts of the uniforms of different nations.
Fighting methods:
"In the beginning the bands fought as civilians. I remember the reports concerning shooting at German soldiers from ambush.
This was mostly done in the following manner: the members of the bands including women in civilian clothes, who were working in the fields, let German soldiers march by and, as soon as they showed their backs, shot at them from behind, with fire arms, which had previously been hidden. Acts of sabotage of every kind constituted the main activity of the bands, especially on lines of Communications (mines, removing of rails, barriers), as well as surprise Attacks, from an ambush on single German soldiers and weak units. Cruelties were an everyday occurrence, both between national and Communist bands, especially between Serbs and Croats, and of both groups of bands against members of the German occupying power. I remember many reports and photographs concerning corpses which were mutilated in an incredible manner.
About since 1944 Tito in Croatia tried to wage war with larger units in addition to the cruel guerrilla warfare. But the atrocities committed also by the larger units of the bands, did not cease.
DR. GAWLIK: The next document will be Document 42, to be Exhibit Dehner 37. It is an affidavit by Walter Warlimont. It reads -
MR. FULKERSON: I object to this on the ground that the affidavit itself shows that it is strictly derivative; secondly, it is a violation of the "best evidence" rule and is hearsay. The affiant talks about his knowledge which he got from reading reports that were passed up to the OKW. We have the reports themselves in evidence here and it seems to me that this affiant's conclusions, drawn from other reports that he has seen, are certainly not helpful and are of no probative value.
DR. GAWLIK: May I say, if the Tribunal please, that the whole evidence submitted by the prosecution against the defendant Dehner, my client, is only hearsay evidence. They are only daily reports and teletypes and the issuants of these reports did not make their statements from their own knowledge. Therefore I can not be told now that I must not submit affidavits because it is hearsay evidence, in order to refute hearsay evidence submitted by the Prosecution.
And there is one more point: I do not know who signed this hearsay evidence of the Prosecution. It is not shown by any document as to who the author of the various daily reports is and whether the author had the necessary knowledge. Whereas General Warlimont, the affiant in this case -
THE PRESIDENT: The objection will be overruled. The document will be received for such probative value as the Tribunal deems that it merits.
DR. GAWLIK: Second paragraph on page 118:
I was from the beginning of the war to the end of 1941 Chief of the National Defense Department, from 1 January 1942 to September 1944 Deputy Chief of the Armed Forces Operational Staff in the OKW.
The partisans in the South East were never regarded by the OKW as legitimate enemy military forces. For this they lacked the most essential prerequisites as defined by the Hague Rules of Land Warfare.
In particular, the reports to the OKW which were accessible to me showed the following characteristics of their fighting methods: They combined for a limited period and for a restricted area to carry out raids, destructions and sabotage, after which they dispersed under the pressure of the occupying power, they did not carry their arms openly, but posed as peaceful citizens or peasants, as the case might be; they did not observe the customs of war, but used every conceivable kind of deceit and cruelty, both against members of the occupying power and against groups of the indigenous population, who would not do their bidding.
According to these reports the partisans also wore no uniforms or at least no standard uniforms or other military badges.
The next documents I wish to submit in order to show that the bands did not adhere to the rules of warfare and that for that reason they could not be regarded as belligerents within the meaning of the rules of land warfare.
The first document is an affidavit, Dehner 43, to be Exhibit No. 38, Dehner Document Book IX, pages 120 and 121, an affidavit by Wilhelm Hammer, who testified as follows:
From September 1942 until the conclusion of the Armistice I was an officer of the reserve and acting Ic (intelligence officer) of Army Group F.
As to atrocities committed by partisans against members of the German Wehrmacht, Herr Dr. Detig, who at the time was in charge of the Army newspaper, "Wacht im Sudosten" (Watch in the SouthEast), will certainly be in a position to give detailed information. I know that a great number of photos showing such atrocities were submitted to the Army Group which, because of the bestial manner in which the latter were carried out, can hardly be described. I personally still remember the raid on a German motor column in the region of Larissa, in the course of which all drivers and the accompanying personnel were slaughtered in the most bestial manner.
The affidavit goes on to report various raids and cruelties on the part of the bandits.
The next document I wish to submit is Dehner No. 44, to be Exhibit Dehner 39, Dehner Document Book IX, pages 122 and 123, an affidavit by Dr. Ernst Hamm, who states as follows:
When I was a regimental adjutant on the staff of Railway-Protection Regiment 3 at Doboj (Croatia) our base at Petrovo Selo along the railway line Doboj-Tuzla was captured by partisans on 11-12 October 1943. The garrison of the pill box, made up of some 15 Croats and 4 German Landesschuetzen of Landesschuetzen Battalion 825 (reserve defense units) were captured by the partisans, against all military law brutally tied up with wires, immediately put against a garden fence and, except for one Croat who managed to escape, shot. The shot men, beginning with the right wing, had their brains knocked out with rifle butts. The Croat who during the execution was standing on the left wing, was grazed by a bullet on the thigh, dropped to the ground and feigned death.
When he saw that all the executed men had their skulls crushed he freed himself from the wire fetters and escaped. The shots fired upon the fleeing man missed their target in the growing dusk. The Croat reported about the incident. When Petrovo Selo was recaptured by us, the truth of the Croat's report could be established. The corpses of the 4 killed Landesschuetzen were exhumed and buried in the Local Defense Units Cemetery 823.
On 2 December 1943 Emergency Armored Train 105 was started from Doboj to Maglay (railway line Doboj-Sarajewo) to support the garrison of Maglaj, which was fighting against the partisans, With the aid of a mine Emergency Armored Train 105 was blown up by the partisans, captured by surprise attack, and the surviving crew made prisoners by the partisans. According to the statement by a Croat who escaped from captivity, the officer candidate in command of Emergency armored Train 105, when being marched off to be interrogated, was beaten bloody and shot the following morning against all military law.
He then cites a few examples and proceeds, towards the end, "Whoever should attempt nowadays to make a non-stop trip by motor care without an armed escort, perhaps from Zagreb or Belgrade via Sarajevo-Skoplje-Saloniki, in the direction of Athens will come to know the bandit plague."
The next document I wish to present is Document Dehner No. 46, to be Exhibit 41, from Dehner Document Book IX, on pages 126 to 128. It is an affidavit by Dr. Ernst Hamm. He testified as follows; I shall now quote verbatim.
From June 1943 until summer 1944 I served as First Lieutenant of the Reserve and as Captain of the Reserve with the Railway Security Regiment Staff 3 in Doboj (Croatia) in the position of Adjutant with the Regiment.
On 30 June 1943 the railroad bridge over the Bosna near Catici with 4 pillboxes occupied by our Battalion XVII was blown up by partisans. The master of the railroad depot of Kakianj reported this occurrence to us in the Regiment Command Post on 1 July 1943, and stated that the crews of the 4 pillboxes fell living into the hands of the partisans and that the commander of the 4 pillboxes, the Croatian officer candidate Grahor, Nicola, was marched off by the partisans fettered in violation of military law. According to assertions of the population of Kakanj the officer candidate Grahor was "butchered" by the partisans on the slaughtering bench for pigs of the Kakanj slaughterhouse, by a stab in the neck like a pig.
The Croatian First Lieutenant who defended the Kaknj mine on 30 June 1943 was, according to statements of the population, dug in by the partisans up to the shoulders after he had been seriously wounded, and he was found on 1 or 2 July by the battalion of the division "Prinz Eugen" which relieved the village of Kakanj, dying and with his eyes put out.
On 11/12 October 1943 our strong point Petrovo Selo at the railroad line Doboj-Tuzla was conquered by the partisans. The crew of the pillbox consisting of about 15 Croatians and 4 German privates of the Regional Defense Battalion 823 was taken prisoner by the partisans, contrary to all military law heavily fettered with wire, at once placed against a fence and all but one Croatian, who succeeded in escaping, were shot dead and the skulls of the shot men were smashed in with the butts, beginning from the right.
The next document I wish to present in Document Dehner No. 51, to be Exhibit Dehner No. 42. It is in Document Book IX, on page 135. It is an affidavit by Karl Christiani. I am also submitting it as purporting to establish that the bands could not be regarded as belligerents within the meaning of military law and the rules of war. Christiani states as follows:
"During the time when I served in Croatia and Slovenia, from the autumn of 1943 till February 1944, the partisan troops fighting against us mainly consisted of ununiformed civilians. Partly they wore a Soviet-Star on their caps or on the breast but frequently no badges at all. In many cases also women took part in the raids, especially in the surprise attacks on the security troops of the Prinz Bach Battalion in the area round Karlstadt.
(signed) Karl Christiani Colonel (retired) and former commanding officer of infantry regiment 303".The next document on the same subject I wish to submit is Document No. 47, to be Exhibit Dehner 43.
It is an affidavit by Otto Frankenreuther. It is in Document Book IX, on pages 129 and 130. Frankenreuther states as follows:
"From the 9 February until 21 September 1944 I was a PFc with the Security Battalion 812 SouthEast, in the Ia paymaster's office (assistant)."
He then states, ad rem:
On the 13.2.1944 I was moved with the Security Battalion 812 from Regensburg to Croatia and was allocated in the area of Ruma.
On the 24.2.1944 a security detail of the 1st company composed of 1 officer and 7 men was encircled by partisans, captured, disarmed, undressed almost completely, and then shot through the head. The officer was kidnapped and could not be found again. I myself helped to bury the bodies of my comrades.
Towards the end of June of the same year, a lumber detail of the 2nd company was suddenly attacked by partisans in a corn field near Mitrowica. All members of the detail were murdered, some of them by having their heads bashed in.
I helped to bury the bodies of my comrades, which lie in the soldiers' cemetery in Mitrowica.
The next two documents - they are documents Dehner 48 and Dehner 49 - will be submitted in order to refute the probative value the Prosecution attached to their single and sole document against General Dehner. I will assign it Exhibit No. 48. Correction, it will be Exhibit 44. That is, Document 48 will be Exhibit 44. It is in Document Book IX, on pages 131 and 132. It is an affidavit by Dr. Fritz Voigt. Regarding his personal data, he states:
From 22 January 1942, I was a member of the 104th rifle (Jaeger) Battalion which was first stationed in Yugoslavia and, later from the summer of 1943 on, in Greece; from the period of 22 February 1942 up to 18 January 1943 I was a NCO and sergeant of the 14th Coy./Rifle Reg. 724, 724, from 18 January 1943 up to 43 March 1943 I was a Lieutenant in the 4 Coy./Rifle Reg. 724.
He then proceeds with further statements showing that at least he held the rank of lieutenant and company commander. Regarding the matter at issue, he says:
From my activities as a battalion adjutant, I repeatedly had knowledge of "doctored reports" directed to superior authorities, in which retributive operations were reported as having been carried out, whilst in reality this had not been the case.
The next document I wish to submit is Document Dehner 49, to be Exhibit 45.
It is an affidavit by Franz von Harling, who states as follows:
I held the rank of Colonel on the General Staff at the time of the following events; from 31 May 1943 to 27 March 1945 I held the office of 3rd General Staff Officer (Ic) in the Supreme Command Southeast (Army Group E and later F).
I shall now quote from the next paragraph:
It was a fact which was known generally among the higher officials of the Command that the troops - even as early as 1942 - submitted "success reports" (Erfolgsmeldungen) which often considerably exceeded the facts (tanks shot up, number of prisoners, captured material, state of own provisions, etc). Several orders issued by the Supreme Commands, which repeatedly demanded truthful reports, and messages, were, in actual fact, without results.
Court No. V, Case No. VII.
The next document I wish to submit is Document No. 50, to be Dehner Exhibit 46. It is in document book 9 on page 134. I shall submit this document as establishing that in the Southeastern area, particularly in the area of the 69th Reserve Corps the Commissar Order was not enforced. The affiant states, as for his person, "In September 1941 I was, as Captain of the Reserve, detailed to Athens as I-C (Counter-Intelligence Officer) to the Commander of Southern Greece where I stayed until September 1942.
"I know about the so-called Commissar Order from hearsay only, i.e., from accounts related by men who had been at the Eastern front. In the Southeastern area this order was not issued. Until now I assumed that it concerned only the Eastern front. If this order had been issued to the subordinated units of the Southeastern area also, I would have read it in my capacity as I-C of the Commander of Southern Greece. This was not the case, as stated above."
The next document I wish to submit is Dehner Document No. 52, to be Exhibit 47, from Document Book 9 on Pegs 136. It is an affidavit by Franz von Harling. I submit this document in order to establish that in the Southeastern area, particularly in the area of the 69th Reserve Corps, the police units were not under the command of the Wehrmacht, and that, therefore, General Dehner was not responsible for any measures carried out by the police within the area of the 69th Reserve Corps. Von Harling states as follows - I shall now quote: "Fourth paragraph. The SD detachments sent into action by the Reich Main Security Office and subordinated locally to the then higher SS and Police Leader in the Balkans were in no way subordinated to the Cin-C Southeast, or any HQ established on those lines."
As to the next two documents, I wish to submit documents No. 53 and 54 in order to establish that in the area of the 69th Reserve Corps no concentration camps existed which were subordinated to the Commanderin-Chief, South East. Document 53 is to be Exhibit 48. It is an affidavit by Franz von Harling, Document Book 9, page 137. Franz von Court No. V, Case No. VII.
Harling states as follows: "I am entirely unaware that within the area of command Southeast there ever existed any "concentration camps" of units subordinated to the C-in-C Southeast. If such camps had existed, I should certainly have heard about them."
I shall now proceed with Document 54, to which I wish to assign Exhibit No. Dehner 49; it is an affidavit by Dr. Friedrich Carl Graf von Westphalen, Document Book 9, page 138. As for his person, Dr. von Westphalen states: "During the period from May 1940 to April 1942 I was Captain of the Reserve and staff officer for special duties with the Chief of Staff of the 2nd Army, and later as Major I served in the same capacity with the Commander-in-Chief of Army Group B and the Army Group South East respectively."
He then states: "I never heard of any concentration camps in the Balkan territory. Such matters were never part of our command nor did they come under the authority of the Commander-in-Chief Southeast. It was almost impossible for military commanding authorities to gain an insight into measures of the Secret State Police and of the Security Service, let alone to give orders to those authorities."
This brings me to the end of my presentation of documents from Document Book 9. If the Tribunal please, I have three more documents to submit, but I believe that the translation of these three documents is not yet available. I request, therefore, that I may be permitted to submit these documents tomorrow morning.
JUDGE BURKE: You will be granted that privilege.
DR. HINDEMITH: Dr. Hindemith, deputy to Dr. Rauschenbach on behalf of defendant Foertsch. I wish to present two more documents. The first document is from Document Book 5, No. 82. I offer this document as Exhibit 71. It is an affidavit by General Field Marshal von Weichs regarding the subject as to how Foertsch carried out his tasks as Chief of Staff and his attitude toward them. He states as follows:
Court No. V, Case No. VII.
"1. I have always been correctly and sufficiently informed by my Chief of Staff, the currently accused defendant Foertsch, as far as I have been able to check and so far as I can remember now.
"2. Foertsch never overstepped the powers that were vested in him. This means that he remained within the bounds of his advisory authority and never assumed a power to command which was not due him. I do not have the impression that he had a tendency towards self aggrandizement.
"3. F. did not make any proposals to me which made the orders of the High Command of the Armed Forces regarding the taking of hostages and reprisals or the other treatment of the civilian population more severe.
"4. Whenever F. disagreed with me or with the Armed Forces High Command, he expressed his opinions frankly and without reserve.
"5. F. was extremely critical towards everything connected with the National Socialist system, and even rejected it. He was not "Predisposed to Nazi ideas", but rather made up his own mind on all things."
The introduction of the next document, Foertsch document No. 83, I should like to preface with the following remarks. It is a complete situation report, Balkans, dated 2 November 1941. The Prosecution has submitted an excerpt from this situation report as Exhibit 139, contained in Document Book 6, German text page 16, English version page 21. The arguments of the defense will be based on the complete situation reports and therefore this situation report which had previously been submitted incompletely will now be submitted in its entirety. I shall dispense with reading this situation report.
THE PRESIDENT: Does this complete your case?
DR. HINDEMITH: Yes, that finishes the presentation of evidence on behalf of defendant Foertsch.
THE PRESIDENT: Do I now understand that the case for the defendant Foertsch is rested? That you as counsel or associate counsel rest your case for the defendant Foertsch?
Court No. V, Case No. VII.
DR. HINDEMITH: Yes, Your Honor, the case is rested.
THE PRESIDENT: Before we adjourn, I would like to make this request of the Prosecution, that the names of defense affiants who were covered by the notice be given to the Tribunal in some form, so that we will know as to where these documents may be found. What page and so forth, so that we can have them ready when we need them.
MR. FULKERSON: Yes, sir.
JUDGE BURKE: You are prepared to furnish us with some statement, and also to the German counsel, so that they may be easily found.
MR. FULKERSON: Yes, sir. We will do that. Of course, some of these affiants made more than one affidavit. We will furnish a list of all the affidavits of these affiants.
JUDGE BURKE: It should also be kept in mind that the cross-examination will be limited solely to the matters that are covered in the affidavits. In connection with tomorrow's session, I think defense counsel who have not rested should be here at such time as they deem advisable to advise the Tribunal as to the fact that they are now resting their case. If counsel that are now here will advise their associates, it will be appreciated. The Tribunal will recess until tomorrow morning at 9:30.
(The Tribunal adjourned until 13 January 1948, at 0930 hours.)
Official Transcript of American Military Tribunal V in the matter of the United States of America against Wilhelm List, et al, defendants, sitting at Nurnberg, Germany, on 12 January 1948, 0930, Justice Wennerstrum presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal V. Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain as to whether or not all the defendants are present in the courtroom?
THE MARSHAL: May it please your honors, all the defendants are present.
THE PRESIDENT: Dr. Sauter?
DR. SAUTER: (Counsel for defendant Luz): If it please the Tribunal, may I submit the last three documents in the case of defendant Lanz? This will conclude the case for Lanz. The three documents are contained in Lanz Document Book No. X. It is a very small document book containing only three documents. The first document is Lanz No. 198 on page 1 of Document Book X. It is a letter by Mr. Bickel who was in Greece at the time, in his capacity as delegate of the International Red Cross. He is a Swiss citizen and may I call to the attention of the Tribunal that this letter of the Swiss citizen Bickel has already been read by General Lanz himself when he was examined on November 25. At that time General Lanz read this letter himself and the Presiding Judge asked him whether the letter had been certified.
In view of this fact, I have now had the letter certified by Mr. Bickel, resident in Zurich, Switzerland. He has now appended an official certification by a notary of his letter which I now wish to submit to the Tribunal.
MR. FENSTERMACHER: Your Honors, I object to this document and take exception to the last remark from Dr. Sauter. The certificate simply certifies to the genuineness of the signature. The letter itself is not sworn nor is it a statement in lieu of oath in accordance with Rule 21 of the Uniform Rules of Procedure. We don't know, in fact, whether the letter was ever sent or whether it was ever received.
I've two other objections to it: one on the ground that it is important. Mr. Bickel says at the bottom that he was a formed delegate to the International Red Cross in Athens. From December 1942 to August 1945. In the text in about the sixth line he talks about being the delegate of the International Red Cross in Epirus, but he doesn't say when.
I object on the ground of its being Immaterial and irrelevant. He talks about General Lanz giving him gasoline for food trucks and distributing food to the population. Well, I submit that is all irrelevant and immaterial to the charges brought against General Lanz which relate entirely to reprisal measures. It is not shown this man had any knowledge of reprisal measures which were taken in the area under General Lanz's command.
THE PRESIDENT: The objection will be overruled. The letter has been previously read into the record. The Tribunal will receive it for such probative value as it deems it merits.
You may proceed. Will you kindly give the exhibit number?
DR. SAUTER: This letter is to be assigned that is, Document 198 -- Exhibit No. Lanz 186. It is evident from the letter -- and that is the reason for our submission of the letter -- in what way General Lanz at that time worked. The letter is particularly interesting because the author of the letter, this Mr. Bickel says at the end of the first paragraph -- I am now quoting:
"Bishop Spirindones of Joannina also said, 'Lanz is no war criminal.'"
MR. FENSTERMACHER: If Your Honors please, I certainly object to that portion of the letter. It is not only hearsay but it is a conclusion on the part of the Bishop.
DR. SAUTER: It is not merely a conclusion by Mr. Bickel. Is is obviously an utterance which the Bishop made in his capacity as representative of the International Red Cross.....
THE PRESIDENT: The objection will be sustained as to that portion of the letter. The letter having been previously read into the record.
Dr. Sauter, perhaps there is no necessity of reading it further or making any other comments. The court will give it the consideration that it deems it merits.
DR. SAUTER: If it please the Tribunal, may I, in connection with this letter draw your attention to the postscript which the delegate of the International Red Cross Committee appended to his letter and which reads:
"I have also sent letters to Athens."
The next document I wish to submit is in Lanz Document Book No. X. It is Document 199, to be Exhibit -- I can assign this exhibit number very confidently because an objection is impossible against this document -- it is Exhibit 187. It is an affidavit of a former officer, Franz Wagner. The affidavit has been duly signed by the affiant and sworn to. It has also been certified by the mayor of the community. The affiant states -- I shall read from page 3, about the middle, after the first paragraph:
"When the Italian units were disarmed in the fall of 1943, I do not remember the exact date--I was the commander of the 3rd Battalion of the 79th Mountain Artillery Regiment on the island of Cephalonia, which was under the command of General of Alpine Troops, Hubert Lanz.
"I was under the tactical command of Major Harald von Hirschfeld, who was the chief of the combat groups on the island. Since I had to work in close collaboration, I gained a knowledge of almost all orders and directives from above, or I was informed of them verbally.
"On the morning of the day we attacked the southern half of the island the city Argostolion, von Hirschfeld mentioned conversationally that the Fuehrer order was that: "No Italian would leave the island alive." He silenced my objections to this by saying that this order would be withheld for the present by Gen. Lanz and would not be applied.
"In the late afternoon of the second day, as I went into the city of Argostolion with von Hirschfeld and our soldiers, and the Italians lay down their weapons and surrendered, von Hirschfeld told me that it was no longer a question of shooting the Italian soldiers, that Gen.
Lanz had arranged, after consultation with Fuehrer Headquarters, that only General Gendin and his commanders would have to answer for their acts.
"In the evening around 1900 hours I was in the von Hirschfeld command post when Gener 1 Gandin and several officers arrived and surrendered. After this had been reported to the 22nd Mountain Army Corps, the order, which v. Hirschfeld transmitted to me orally, came late at night-it may have been around midnight--to hold a court martial and to execute the verdict against the guilty ones on the morning of the next day.
"I know from hearsay (I was neither present at the court martial, nor the announcement of the verdict, nor at the execution) that Gen. Gandin was shot at 6 o'clock in the morning. After sentence had been passed he was given the opportunity to see an Italian chaplain.
"Several hours later, high ranking Italian officers were shot under the same circumstances; I was also not present at this execution. I testify that not all Italian officers were shot. These Italian officers often assisted me in selecting auxiliaries for my unit from the Italian prisohers. They were quartered with the Italian non-commissioned officers and enlisted men at collection points and were later moved out with these. It was my conviction at that time, and it still is, that General Lanz' unreserved objections to his superiors saved the lives of several thousand Italian soldiers."
Signed: "Franz Wagner." That was Exhibit Lanz 187.