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.
I shall now come to the last document on behalf of defendant Lanz. It is Document No. 200 on page 5 of Document Book Lanz X. The Tribunal may remember that some days ago when submitting other documents on behalf of Lanz, I also mentioned a proclamation by the French military authorities in Birkenfeld and that I read excerpts from it in order to establish that French occupation authorities also ordered reprisal measures in the ratio of 1 to 10.
At that time the prosecution objected to this document, saying that it had not identified. At that time I was unable to identify the document because the affidavit relevant to that case had already been filed by me but bad not yet been translated and then the Tribunal ruled that the matter was to be deferred until the affidavit had been translated and was available to the Tribunal.
That now is the case. The affidavit serves to identify the proclamation by the French military administration. It is in Document No. 200 which I am now offering to the Tribunal. The contents of the proclamation itself has already been read into the record the last time. It is merely a question of the affidavit new which is attached to the document.
MR. FENSTERMACHER: Your Honors please, I object to this. Your Honors will recall that at the time Dr. Sauter offered the proclamation itself it was objected to and admitted only provisionally subject to a motion by the prosecution to strike it if the identifications were not completed.
I now move to strike the proclamation. Your Honors see what Dr. Sauter is trying to palm off on us now by way of identification. The first affidavit which he offers states: that "The photocopy attached which an acquaintance of ours had given us." The acquaintance is not named. We don't know where he is, nor the circumstances under which he found the proclamation. The affiant simply says that his acquaintance assured him that it was an exact reproduction of the military document in Landkreis Birkenfeld.
The affiant simply states that his acquaintance assured them that the poster was an exact reproduction of the notice of the French military government in the Landkreis Birkenfeld. That is certainly hearsay of the worst kind and we don't know who the acquaintance is.
The statement of the acquaintance in assuring the affiant that it was an exact reproduction is certainly not made under oath.
Then the affiant talks about a similar notice, and after the middle paragraph they say. "We have seen this poster ourselves." It is certainly not clear which poster they mean, whether they mean the first one or the similar notice.
I submit that in order to have this proclamation properly identified someone has to say where they saw the poster, when they saw it, certify that they saw it publicly posted. I would just like to ask Dr. Sauter if he were Prosecution counsel how he would go about challenging the validity of this poster. There is no conceivable person we can bring here for cross-examination purposes. If we bring the affiants they say they got it from an unknown person. And we don't know who the unknown person is, to ask him how he got it and under what circumstances.
For all it appears here, he may have printed the proclamation himself. So much for the validity of the proclamation from the first affidavit. There is certainly suspicion aroused by the second affidavit which appears to be the second affidavit by relatives of the first affiant. They, too, say that an owner who is unknown assured this affiant that the original had been publicly posted in the Landkreis Birkenfeld, and that in the summer of 1946 he took the original from a public place into his possession. The proclamation itself is dated the 10th of January 1945.
If this proclamation was in fact publicly posted from July 1945 through to the summer of 1946, certainly Dr. Sauter ought to be able to get samebody in this city of Stuttgart of 500,000 people to identify this and say when they saw it and where they saw it and whether or not it was publicly posted at the time they did see it.
I move to strike the proclamation.
DR. SAUTER: If it please the Tribunal, things are not as simple as that for the defense to produce witnesses from Stuttgart. I myself am here in Nurnberg and know nobody in Stuttgart. My client is not granted any leave to go to Stuttgart and to look for witnesses. The matter is like this:
I have not merely submitted a copy of the poster, but also the original which is in the files of the secretary general. You may recall that the last time I had the original here I showd it to the Tribunal and that the two affiants confirmed that this original document which I submitted to the court were received by them. Where else could it come from but from the French Military Government?
The affiants go on to confirm that they themselves saw a document of this kind at the time, that they saw how such notice were publicly displayed. Therefore, in my view there can seriously be no doubt as to the importance and authenticity of this document.
May I point out, if it please the Tribunal, that in the course of this case the prosecution for instance has also submitted posters of German authorities. We have never had a witness who had confirmed and sworn to the authenticity of these posters. We never questioned their authenticity because we take the view that as a fair defense counsel one ought not to contest something which is obviously genuine.
MR. FENSTERMACHER: Now, if your Honors please, Dr. Sauter's remarks are not quite pertinent. This is on a corollary issue. Whether or not it is submitted makes no difference to the eventual outcome of the case, in our opinion. Now when he talks about the affiants having seen this poster, I submit that is completely ambiguous. We don't know whether they are talking about the poster which Dr. Sauter now intends to offer, or whether they are talking about this similar poster. If they say they have seen this poster, it is completely ambiguous. We don't know whether they mean the poster that Dr. Sauter is offering into evidence or whether they mean the similar notice which they mention in the second paragraph of the affidavit.
I myself could certify that I saw the poster after Dr. Sauter shows it to me. We don't know whether these people have said they have seen it after the owner has given it to them or whether they themselves saw it was publicly posted. There is no conceivable way the prosecution can shake the validity of this proclamation if it is allowed into evidence under these circumstances.
THE PRESIDENT: The document No. 200, which is Exhibit 188, has as a part of that document the statement: "A similar notice was posted--" Exhibit 188--thank you--states that a similar notice was posted in Stadtbezirk Zuffenhausen during the occupation of Stuttgart by French troops.
The Tribunal is conscious of the fact that the proof is not as positive and as clear as might be desired, but under the general rule and theories which underly these trials, that the rules of evidence shall not be strictly required and adhered to, the Exhibit will be received for such probative value as the Tribunal deems that it merits.
DR. SAUTER: If it please the Tribunal, may I now conclude my presentation of documents in the case of defendant Lanz? I thank the Court for their indulgence.
THE PRESIDENT: By your statement and remarks, I take it, Dr. Sauter, you are now resting your case for the defendant Lanz?
DR. SAUTER: Yes. I thank the Tribunal.
THE PRESIDENT: The record will so show.
MR. FENSTERMACHER: Your Honor, if there is no further business by the defense, I am prepared to cross-examine Fieldmarshal List on the excerpts of his personal diary.
THE PRESIDENT: You may do so at this time.
(Fieldmarshal List took the stand.)
CROSS-EXAMINATION BY MR. FENSTERMACHER:
Q. Fieldmarshal, I should like to return to you your personal diary at this time.
There has been some difficulty in transcribing certain of the. excerpts from your own handwriting, Fieldmarshal, so if I should happen to have a wrong translation of any of them I hope you will feel free to correct me. Will you look at the entries in your diary for the 4th, 9th and 10th of June, 1941? These entries were not translated, if Your Honors please.
A. Do you mean of the 4th, 10th and 9th of June? I am unable to find these entries in my document.
DR. LATERNSER: If the Tribunal please, I object to this question. The prosecution is entitled to cross-examine regarding such points as I have included in my document book. These points are subject to cross-examination according to the rules of the Court. It is the same thing as with a witness. A witness knows a great many things and the prosecution is entitled to cross-examine him on those points on that part of his knowledge to which he has already testified, but not the prosecution with the very first question transcends these limitation. They can contest what I have submitted, but they cannot contest what I have not submitted.
MR. FENSTERMACHER: If your Honor please, -
THE PRESIDENT: The objection will be overruled.
BY MR. FENSTERMACHER:
Q. Will you examine your own entries in your own handwriting, Fieldmarshal, for the 4th, 9th and 10th of June, 1941. They relate, do they not, to certain conferences you had with Guenther Altenburg who was the representative of the Foreign Office in Greece at that time?
A. Just a moment, I wish to read it first before I comment. I wrote it in shorthand and I have to decipher it first. On the 4th and the 9th, what was the other date?
Q. Now on the 4th you talk about having a dispute with Altenburg and I believe you say something to the effect that Altenburg is overstepping his rights. Is that correct?
A. Yes, that is correct. It is about an encroachment of his rights.
Q. Then on the 10th of June, you talk about sending a report to the OKH regarding the competence of Altenburg and you mention executive power. What is all this about--your discussions with Altenburg, and his overstepping his rights?
A. I am unable to say that in detail at this time. This regulation at that time contained a provision that the Plenipotentiary of the Reich had certain rights and those he had obviously overstepped in individual cases. But as to what cases were concerned, I am unable to say now.
Q. You were very jealous of the power which you had been given on the 9th of June, 1941, as Wehrmachtbefehlshaber Southeast, and you wanted to put Altenburg in his place, didn't you?
A. It is a matter of course that everybody tries to safeguard and claim those rights to which he is entitled.
Q. Now then, I believe in the entry of the 13th of June there is some mention of your going to see the Commander-in-Chief of the Army, Fieldmarshal von Brauchitsch in Berlin. What did you want to see Brauchitsch about?
A. Just a moment, I haven't found the passage yet.
Q. This entry, if Your Honors please, has been translated in the excerpts offered by Dr. Laternser and is found on page 78 of this document Book No. III.
A. It reads here "Call from Berlin. I have to go to the OKH." That is, I didn't want to go, but I was ordered to go.
Q. Then on the 15th of June, your Ia officer, your Operations Officer Kuebler arrived from Athens. Did he bring you news of what was going on in the area of the 12th Army while you were absent from headquarters?
A. I can no longer say today what Kuebler told me at that time. The main place in this conversation was taken by the consultation in Berlin.
Q. Well, I will come to that in -
A. Kuebler arrived in the afternoon by plane from Berlin. He arrived from Athens. He was called for by order of the Commander-in-Chief of the Army and on the same night we flew together to Berlin and we probably mainly talked about what Brauchitsch really wanted from us.
Q. Now let's come to that conference that you had with Brauchitsch, and then another conference with Hitler, and then I believe a third conference with Keitel and Jodl. What was talked about in those conferences?
A. The only topic was the new task which I was assigned subsequently, that was the institution of the Armed Forces Commander Southeast. Hitler did not talk at all about it. He merely wanted me to report in general on the Balkan campaign for his own information.
Q. Now in your affidavit which appears on page 77 of this Document Book III, you mentioned periods during which you were absent from headquarters, and you mention that you were absent from the morning of the 13th of June, 1941, until the afternoon of 23 June 1941, Vienna, Berlin. That was an official business trip, was it not, Fieldmarshal?
A. A semi-official trip, partly it was a recuperation after my illness.
Q. Nowon the 20th of June, there is an entry which has not been translated which I think mentions that you talked to Foertsch on the telephone. Did he call you from Athens at your home in Vienna or GarmischPartenkirchen?
A. I really don't know today what happened on the 20th June, whether I instigated the telephone conversation or whether he was responsible for it.
Q. You probably talked about what was happening in the area under your command, didn't you?
A. Probably we talked then about the fact that I had become Armed Forces Commander Southeast. Probably--it is merely a conjecture on my part. I can no longer say what I said in a telephone conversation seven years ago.
Q. Well, you were Armed Forces Commander Southeast from the 9th of June and you didn't leave Athens until the 13th of June, and here you are talking on the 20th June about the same subject. You would have covered that before you had even left Athens, wouldn't you?
A. The order was not available at the time I left Athens. The order was issued by me after my return. That is also contained in this diary, I dare say. The basic order is dated by Hitler, but my order I only received my commission when I came to Berlin and that is quite evident from the entry on the 13th of June on page 78 "Call from Berlin. I have to go to the OKH." It was a complete surprise to me that I had to go to Berlin.
Q. Now, Fieldmarshal, the Hitler order appointing you Wehrmachtbefehlshaber Southeast and giving you full executive power in the Southeast area was issued on the 9th of June, 1941, was it not?
A. It is dated the 9th of June.
Q. Now do you mean it took more than four days before that 9th of June order got to you in Athens? After all, you didn't leave Athens until the 13th.
A. As far as I recall, this order was only discussed in all its effects in our conference on the 13th of June in Berlin.
Q. Now why did you talk to Foertsch? Wasn't Felmy in full charge of the 12th Army while you were away during that period? Couldn't Foertsch have cleared everything through Felmy?
A. I don't know whether Felmy was ordered in this case to take charge on my behalf or as my deputy, but it as a matter of course that the Supreme Commander has to talk with his chief when he is absent for some time, and particularly in cases where such a fundamental change in the whole position to place.
Q. Now let's turn to the entries during the month of July. First of all, you mention in your affidavit that you were absent from the 20th of July 1941, absence because of leave and duty. Now on your way from Greece to your home in Germany, you stopped off in Serbia, did you not?
A. Yes.
Q. And I believe on the 21st of July you had a conference with Gener Bader and General Stahl in Serbia--this is on page 85 of the English, if you Honors please. Have you found the entry an your book?
A. Yes, I have.
Q. You remember that the attack upon General Lonschak occurred on the 18th of July, 1941, and that in reprisal for that attack, 52 communists and Jews were shot on the 20th of July. That is to say, the day before you arrived in Serbia. Do you recall now whether you discussed that attack with General Bader and General Stahl in your conference on the day following -that is on the 21st of July?
DR. LATERNSER: I object to this question because this point has already been a topic of cross-examination by the prosecution.
MR. FENSTERMACHER: Not in this context, if your Honors please. He mentions here a conference with Bader and Stahl and that is the first knowledge I have of any such conference taking place on the day after -
THE PRESIDENT: The objection will be overruled.
BY MR. FENSTERMACHER:
Q. Do you remember the question, Fieldmarshal?
A. I have previously answered the very same question which is now be put to me in my direct examination by Mr. Denny and I refer to what is set down in the record.
Q. I asked you a very single question, Fieldmarshal, whether you discussed this matter in your conference with Bader and Stahl in Serbia on the 21st of July, 1941. If you don't remember, you can say so.
A. I have already replied to this. I have given this answer in dir examination and that ought to be in one record.
Q. Can't you give me a yes or no answer to it again?
THE PRESIDENT: General List, if you will kindly give attention to the question and answer it, if you care to answer it; otherwise the Court will take such consideration of your attitude and answer as it deems advisable.
A. I said at the time that this affair was not discussed as far as I can remember.
Q. General Stahl was the Commander of the 714th Division, as you point out here in this entry. You will recall from the documents that on the 20th of July, the 714th Division reported that it had killed two communists and shot 16 prisoners.