They stubbornly refuse to comply with the application of the defense to submit favorable evidence likewise. All witnesses the defense applied for and who are detained by the Yugoslavian Government have been approved by the Court. The Yugoslavian Government, however, refuses to release them. That is contradictory to the very nature of a fair trial, if a source can only be utilized for evidence of the Prosecution and not likewise for the defense.
"The attitude of the Yugoslavian Government has created such a situation, that the Tribunal is placed in a position to decide merely on the basis of the part of the evidence which is of Yugoslavian origin. Such a condition could result in a decision unfavorable to the defendant.
"The Prosecution did not prove the connection and the relation between the individual defendants and the entire Yugoslavian evidence for the Prosecution, including the pictures submitted.
"III. I furthermore request nullification of the evidence for the Prosecution submitted by the Greek Delegation, that is to say:" The numbers are specified. (Following list of exhibits copied from document and made a part of the record, though not read, pursuant to request of counsel:)
"Exhibit 499 Exhibit 499/1 Exhibit 499/2 Exhibit 499/3 Exhibit 499/4 Exhibit 499/5 Exhibit 499/6 Exhibit 509."
"As a reason for this motion of nullification I point out that the Prosecution has not proved any connection whatever between the facts as shown by those documents and the defendants, particularly my clients Fieldmarshall List". The words "and von Weichs" to be deleted.
"IV. I finally request the nullification of the document:
"Exhibit No. 25 c 52 Volume I German Page 62, English page 86.
"With reference to this document the Prosecution has neither proved that this order was being distributed within the area of the theatre southeast. The same applies to this document as specified already under I, since only short excerpts from this Document Book are available in the English version."
I have one more motion I should like to put.
MR. FENSTERMACHER: I would like to make a very brief reply to this first motion, Your Honor. As to the first objection, that the material in evidence has not been entirely translated, certainly the defense has had every opportunity and has availed themselves in large measure of the opportunity to translate all excerpts from these documents that they wished, at great cost of time and expense. Whole war diaries of the various units which these defendants have commanded were translated in their entirety solely to show tactical material which the Prosecution never once disputed. The second objection made to the Yugoslavian documents has, I think, already been answered when the documents themselves were received into evidence over Dr. Laternser's objection, but to make an attack upon a sovereign government and the way it conducts its affairs is, I think, entirely improper. Whether the Yugoslavian Government has cooperated or not in the matter of securing witnesses is only something which only the Defense Information Center could answer, for they are, after all, the authority which is entrusted with the task of securing evidence on behalf of the defense. The objection regarding the Greek documents has also, I think, been answered when, over objection, they were received.
I submit they are entirely relevant and certainly to object at this point on Dr. Laternser's part is entirely a matter of argument.
THE PRESIDENT: May I inquire, Mr. Fenstermacher, concerning this Number II? As far as the record is concerned, and as far as the Tribunal has any personal knowledge, there is nothing to indicate a failure of cooperation on the part of the Yugoslavian Government towards the defense. Will the Prosecution admit that there has been a failure of cooperation on behalf of the Yugoslavian Government toward the bringing of witnesses for the defense?
MR. FENSTERMACHER: We certainly will not admit that, Your Honor. As far as the record shows, there has been no failure of cooperation and if there were, only the Defense Information Center, who does the negotiating in that respect, could answer this question, certainly, not Dr. Laternser. Now, regarding the fourth objection, I believe the evidence clearly shows that whether this order itself went down to the Southeast, certainly - judging by the results - a similar order certainly must have been circulated in the area of the defendant's command. I think it ought to be borne in mind throughout that the Prosecution has presented this case entirely from captured documents and there certainly has been no assurance that we have captured all the documents which were valid in the area under the defendant's command.
DR. LATERNSER: If the Tribunal please, I would like to answer this very briefly. Point I. Of course, the defense did have an opportunity of making use of the war diaries, and as far as the defense thought it was useful to do so these war diaries have been used, as far as they were available. The documents specified under section 1 are documents which the defense did not need for their defense. They were, therefore, merely Prosecution Exhibits translated fully; that is the burden of the Prosecution, but if prosecution documents are available only in partial translation then they can not be used because, as far as I am informed about American rules of evidence, the entire documents have to be submitted. For those reasons the documents specified under section 1 ought to be stricken. I shall now deal with Points 2 and 3. As far as the cooperation of the Yugoslavian and Greek delegation is concerned, I can only state, basing my statements on what I heard from my colleagues, that there was no cooperation. As for the last point, Part IV, it was the burden of the Prosecution to establish that this order had some kind of connection with the Southeastern theater of war, and the Prosecution did not even attempt to establish that. So much for this motion.
In conclusion I should like to put a motion that the court, on the basis of provisions under Article 63 of the Geneva Convention and of Article 8 in Appendix 1 of The Hague Rules for Land Warfare may declare itself as not competent. That is all I have to say, and with that I close the case on behalf of Field Marshall List.
THE PRESIDENT: The Tribunal --.
MR. FENSTERMACHER: (Interrupting:) Excuse me, Your Honor. It is a little difficult for the Prosecution to know What reasons or what grounds are now being advanced by the defense to combat the competence and jurisdiction of the Tribunal. I would suggest that Dr. Laternser put this motion in writing, and if he has any argument that he put that in writing also, otherwise the Prosecution is completely at sea as to what arguments to meet. In our earlier brief on this point, we attempted to interpret exactly what was in the defendants' minds, but I am not sure we have done a very thorough job on it.
DR. LATERNSER: If the Tribunal please, I will be happy to put this motion in writing and file it in the course of tomorrow morning. I referred to these provisions on which this motion is based, that is, Article 63 of the Geneva Convention, and this, in my view, has been overlooked so far, that is Article 8 in Appendix 1 to The Hague Rules for Land Warfare, which in my view has been overlooked in the decision in the case of General Yamashita, because these provisions were not cited. Of course, I can only judge this on the basis of an excerpt which was available to me, dealing with this particular decision. I am prepared to put this motion in writing and file this motion tomorrow morning.
THE PRESIDENT: As to the motion in four parts which has just been presented to the court in typed form, the Tribunal wishes to state to the final closing of the evidence. As to the motion to which you have just referred, I take it that you will present that in writing and submit it to the Tribunal tomorrow.
DR. LATERNSER: Yes, Your Honor.
THE PRESIDENT: Do I then understand that you are resting your case for the defendant List?
DR. LATERNSER: Yes, Your Honor. If the Tribunal please, there are two more cases to be rested, namely: the case of defendant Dehner and the case of defendant General Speidel. The Greek documents in the case of Speidel have not yet been translated. I assume that the documents on behalf of General Dehner are already available in translation. I regret that my colleague, learned counsel Dr. Gawlik, is not present. He is busy with another case just now and probably erred in estimating his time. I shall ask immediately that Dr. Gawlik be called, if the Court would be kind enough to take a short recess. Dr. Gawlik will then be able to rest his case. I ask the indulgence of the Tribunal.
THE PRESIDENT: The Tribunal is of the opinion that the defendant Dehner should not be required to rest his case without the presence of his counsel and the opportunity to present this last document. That being true, the Tribunal will be in recess until such time as Dr. Gawlik can be present here in the court room, which I trust will be within a short time.
There will be a short recess. (Here followed a short recess.)
(Following recess.)
THE MARSHAL: The Tribunal is again in session.
DR. GAWLIK (Counsel for General Dehner.) I beg the indulgence of the Tribunal. I learned about one thirty o'clock that the document book 11 was not available to the Tribunal in English. It was then a question of finding out where the translation was and meanwhile I learned the translation was made available to the Tribunal. Correction, it is document book 11. Dehner document 56 to be exhibit Dehner No. 50. It is in document book 11 on page 141 to 144. It is an affidavit by Franz Kaudewitz, dated 10 January 1948. Kaudewitz states as to his personal data:
"From July 1943 to February 1944, I held the position...."
THE PRESIDENT: Pardon me, sir, the Tribunal did not get the exhibit number if you did give it, if you did not give it, will you kindly so now?
DR. GAWLIK: Exhibit 50, exhibit No, 50.
THE PRESIDENT: Thank you.
DR. GAWLIK: "From July 1943 to February 1944 I held the position of the 1st General Staff Officer (Ia) with the 173rd Replacement Division in Croatia."
His statements refer therefore to the command of the 173rd Replacement Division. Under Section 1, Kaudewitz makes statements regarding the independence of Croatia, particularly that the Commander of the 173rd Replacement Division, that is that the Wehrmacht did not exercise the highest authority in Croatia. I shall quote:
The Commander of the 173rd Replacement Division did not constitute the highest authority within the area covered by his division. As a result of the fact that Croatia was an independent State allied with Germany, the entire sovereign power - legislature, administration, justice - was in the hands of the authorities of that state and was wielded by them. The German Command Offices could not interfere when they exercised these their rights. Also in other respects the German troops were considerably restricted in their freedom of movement by the sovereignty of the State of Croatia.
Thus, for instance, the German troops were not entitled to make requisitions or to occupy billets on their own initiative.
The Croatian State had his own armed forces. The Croatian troop units stationed in the area covered by the 173rd Replacement Division were not subordinated to that division.
Neither were the police units stationed in their area subordinated to the 173rd Replacement Division. On the contrary, these always used to stress their independence.
Section 2 of the affidavit is to establish that the bands operating in Croatia were not considered to be belligerents within the meaning of International law:
The bands which operated in Croatia did not wear any insignia which were recognizable from a distance. They wore civilian clothes, partly also German uniforms. The majority of the bands did their work as farmers or craftsmen during the day-time; when darkness fell they fetched their arms from their hiding places and carried out assaults, blastings and other sabotage acts.
When carrying out their operations, the bands did not observe the rules and customs of warfare in any way. They did not treat German soldiers who had fallen into their hands as prisoners-of-war. Above all, they killed wounded soldiers who had still been able to put on their own bandages by bashing in their skulls or shooting them through the neck. (example: assaults in the 3rd Company of Engineer Battalion 46 near Ilok.)
Page 142, Section 3. This section refers to the arrest of hostages and other measures against hostages, as well as the destruction of villages. I quote:
I know that the Commander of the 173rd Replacement Division never issued an order for the arrest of hostages, the killing of hostages or for the destruction of villages. I know this, because in my capacity Ia I had to countersign all orders before they were submitted to the Divisional Commander.
During the time that I was a member of the 173rd Replacement Division it never, as far as I can remember, arrested any hostages, killed any hostages, or took such reprisal measures as the destruction of Croatian villages.
Section 4 refers to the order of the 15th September, 1943:
I remember that the order issued by 2nd Panzer Army on 15 September 1943 was forwarded to the Division. However, the order was later amended (either by means of a supplementary order or orally during a conference at Army Headquarters at which the Ia's of the corps and divisions were present), with the result that the reprisal quota was considerably decreased.
No reprisal measures, however, in particular no executions of hostages, were carried out by the division on the basis of this order. Only the Croatian police carried out reprisal measures in the area covered by the 173rd Replacement Division. These reprisal measures were reported by the division to the corps, because everything that happened within the area covered by the division had to be reported. The division, however, took no part in the reprisal measures and had no influence on the ordering and carrying-out of such measures. The Corps Headquarters of the LXIX Replacement Corps never objected to the 173rd Replacement Division not carrying-out any reprisal measures.
Section 5 refers to operation Kammerhofer:
"The operation Kammerhofer was an independent operation of the police. SS-Gruppenfuehrer Kammerhofer, who was in charge of this operation, was neither subordinated to the 173rd Replacement Division nor to the LXIX Replacement Corps."
Section 6:
"The 173rd Replacement Division did not maintain any hostage camps."
Section 7 refers to the assault on Grgurevci In connection with the assault on Grgurevci I can make the following statement:
The locality of Grgurevci was mainly inhabited by ethnic Germans, as well as by some Croats.
A police unit of about 200 men was stationed in the locality.
This police unit was assaulted by partisans in cooperation with those inhabitants who were not ethnic Germans, and it was surrounded in its local billets.
Following a request of the police, units of the 173rd Replacement Division were sent out as relief troops. A fight for the place followed, in the course of which the artillery shot into the village and set fire to several farms. Before the units of the 173rd Replacement Division undertook their final attack, the partisans evacuated the village. Thus the police unit was again liberated. As far as I know, the units of the 173rd Replacement Division did not enter the village at all. In any case they did not carry out any reprisal measures. If such measures did indeed take place, they could have only been carried out by the police. However, I consider it unlikely that any reprisal measures were carried out at all, as the majority of the village inhabitants consisted of ethnic Germans.
In the course of the fight for that village the partisans shot up a German motor ambulance. Further I heard that the partisans while occupying the village had nailed ethnic Germans to barn doors and mutilated them, and had quartered a German girl.
Section 8 refers to the incidents near Lezimir:
In connection with the incidents near Lezimir I can make the following statement:
The locality of Lezimir was a strong point of the bands and was fortified by dug-outs and trenches.
When the German troops approached, the partisans fled. Only a few old men, women and children remained in the village. After the occupation of Lezimir General DEHNER issued repeatedly, and in my presence, the order that these should only be interrogated and then released, but that no hard should be done to them under any circumstances.
When the troops of the 173rd Replacement Division had already left Lezimir, it was reported to the division that the police was said to have shot these people. We were horrified by that and sent on the report to the corps, if only for the reason that we did not wish to be suspected of having acted against an explicit order of General DEHNER.
At the time when the execution was said to have taken place, the police was not subordinated to the Wehrmacht. Also, the tactical cooperation which had existed during the combat had been terminated after the occupation of the village.
It was not possible for the division to establish whether the rumor about the shoorings was founded on facts.
Neither has the 173rd Replacement Division or troops subordinated to it burned down the village.
Section 9 refers to the evacuation of concentration camps and labor camps:
Within the area covered by the 173rd Replacement Division no evacuations of civilians were carried out. No concentration camps, labor camps or similar institutions were subordinated to the 173rd Replacement Divisions. Neither did the 173rd Replacement Division ever transport any persons by force to Germany.
The next document I wish to submit is Dehner No. 57, to be Exhibit Dehner No. 51. It is in document book 11 oh pages 145 and 146. It is an affidavit by Dr. Hans Ernst Schilling.
MR. FENSTERMACHER: Your Honors, for inspection Your Honors will note that it is apparently pre-typed and the affiant himself just filled in the date of his birth and the place of his birth.
THE PRESIDENT: You are making no objections to the document?
MR. FENSTERMACHER: No, Your Honor.
THE PRESIDENT: You may proceed.
DR. GAWLIK: May I state with regard to this that this affidavit was taken by my assistant in Coburg. I assume that he made a draft in accordance with the specifications of the affiant, where I don't know and that he probably forgot in the course of this dictation to put in the personal data and then of course this had to be done by the affiant in ink afterwards. If importance is attached to this, I can of course eludicate the matter.
THE PRESIDENT: There is no objection.
DR. GAWLIK: As for the affiant, he first makes a statement regarding his personal data, particularly, that he has the knowledge necessary to testify and to state what he does state in the affidavit. The affidavit regards:
From August 1943 to February 1944, I served as a sergeant (Unteroffizier) in the headquarters of the 173 Reserve Division, section Ic (counter intelligence) in Ruma, Yugoslavia. The 173 Infantry Reserve Division was subordinated to the LXIX Reserve Corps. Lt. General (General) Dehner was the commanding general of this corps. As a sergeant in the division, Section Ic, I permanently dealt with questions concerning the combatting of partisans. I was conversant with all orders emanating from higher command authorities (such as AOK), as they had to be further transmitted to our own subordinate units (regiments, battalions, etc.) It was a matter of routine that I also knew all orders concerning this subject which were directly issued be the subordinate units by our division commander.
It was laid down in all orders and directives of this kind that captured partisans were to be treated decently and correctly; particularly it was laid down that they were to be well fed during the first days after their capture. In most cases, the captured partisans were starved, which resulted from the unfavorable conditions in which they were fighting. Personally, I do not know of a single order in which it were laid down that arrested partisans were to be "liquidated by shooting" (in German: "umgelegt") or "hanged". The subordinate unit commanders were strictly forbidden to commit arbitrary actions of this kind. I myself - assisted by our interpreter - talked frequently with captured partisans, and they stated unanimously that they were surprised by the decent treatment received from the Germans.
In the opinion of most soldiers of our division, the arrested partisans were treated too well, as they used combat methods which were very malicious throughout and partly cruel.
In the area of our division and in the period from 15 august 1943 to 30 September 1943, 60 captured partisans were exchanged against 30 Germans soldiers captured by the partisans; this exchange took place on the Southern slope of the Fruska Gora mountains. Upon their return, our comrades reported to the division commander on terrible atrocities which they had to endure from the partisans. The fact that this did not lead to the issue of more severe orders concerning captured partisans was strongly resented throughout the division.
DR. GAWLIK: Another affidavit I wish to submit is Document No. 58 to be Exhibit! Dehner No. 52 in Document Book 11 on page 147.
MR. FENSTERMACHER: I would also like to show, Your Honors, this document appears to be written in the hand of the assistant defense counsel for General Dehner and is merely signed by the affiant, however, I again make no objection to the actual document.
DR. GAWLIK: The affidavit was written down as dictated by the affiant.
THE PRESIDENT: May I inquire, Mr. Fenstermacher, if you ask the Tribunal to take any adverse interpretation to this?
Is there any difference between this and a typewritten one?
MR. FENSTERMACHER: I really don't quite know, Your Honor. We have noticed throughout this case that many of these affidavits, at least fifty to my own knowledge, appear either written in the hand of someone other than the affiant or else they are typed. The affiant seems to have merely inserted the place of his birth and the date when he was born. Beyond this we cannot tell just what went on in the preparation of the affidavits. We have asked for one or two of the affiants to be brought here for cross examination.
THE PRESIDENT: The only inference I can get from your remarks to the Court is to take some adverse inferences from the facts that this has been written in the longhand of an assistant. I see no difference personally - I am not speaking for the other members of the Tribunal between this and a typewritten document.
MR. FENSTERMACHER: We mean to make no adverse implication. Your Honors, except that when we do bring these one or two affiants here for cross examination I should like Your Honors to know that there have been other cases of the same thing, that we are simply bringing two representative cases for cross examination.
THE PRESIDENT: Until such matters are known to be incorrect - I think the Court can draw its conclusions as to those - but I don't think there should be a blanket indictment placed against these affidavits unless there is a showing to that effect.
You may proceed.
DR. GAWLIK: May I add to this?
THE PRESIDENT: There is no necessity of any further comment.
DR. GAWLIK: I already stated that Document 58 on page 147 is to be Exhibit 52. It is an affidavit by Franz Kaudewitz who stated as follows?
"In 1941 I participated in the campaign against Yugoslavia in the quality of a battalion commander. After the conclusion of these operations, I and my battalion were billeted in Vlasamica, South East of Sarajevol Regimental headquarters was located in Sarajevo and I had to visit headquarters often for conferences. In order to get there, I had to go by automobile, passing high mountain ranges and woods, the distance being about 200 kilometers. During this whole period, no shot was ever fired, so that I could always drive without any escort. At that time, no partisan activities of any kind whatsoever were observed. I was, for this reason, all the more surprised when I returned to Croatia in 1943 and found the conditions then prevailing.
I have presented this document, if it please the Tribunal, as establishing that in 1941, after the capitulation, the Yugoslav Army was completely routed in Yugoslavia and that it is incorrect, as asserted by the prosecution, especially in its legal brief, that the bands somehow carried on the military operations of the Yugoslav armies and also as throwing some light on the effectiveness of the occupation.
This rests my case, if it please the Tribunal.
DR. WEISGERBER (Counsel for defendant Speidel): If it please the Tribunal, during the recess I learned that the notices published in Greek newspapers or notices by German authorities which I would like to file as exhibits are not translated as yet. They are to be finished by tonight so that I would have an opportunity of offering them tomorrow. Except for these documents, I can rest my case, if the Tribunal will permit me to submit these documents at a later stage. There are only five or six short documents. That would facilitate the resting of my case.
MR. FENSTERMACHER: If Your Honors please, the prosecution would be glad to allow Dr. Weissgerber some of its rebuttal time tomorrow if you would like to put some of these documents in.
THE PRESIDENT: Is the prosecution ready to proceed with its rebuttal testimony at this time.
MR. FENSTERMACHER: Not at this time, Your Honor. We will be ready at nine-thirty tomorrow morning.
THE PRESIDENT: The defendants Felmy and Speidel will not be required to rest their case at this time, in order that they will be given the opportunity to present documents in question, the proclamation or such evidence as they may see fit to present, tomorrow morning. I sincerely trust that it will be possible to present them at nine-thirty in the morning and I shall make personal inquiry myself to see if they cannot be hastened.
The Tribunal wishes to express its appreciation both to the prosecution and to the defense counsel for their cooperation in bringing this evidence to a close or as near a close as we can at this time and for their cooperation in the presentation of their documents.
The Tribunal will be in recess until nine-thirty tomorrow morning.
(The Tribunal adjourned until 0930 hours 14 January 1948)
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 14 January 1948, 0930, Judge Carter 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 PRESIDING: Mr. Marshal, will you ascertain whether or not all defendants are present in the courtroom.
THE MARSHAL: If it pleases your Honor, all defendants are present.
THE PRESIDENT: Judge Carter will preside.
MR. FENSTERMACHER: If your Honor please, you will recall at the end of the prosecution's case we prepared a list in chronological order of all the documents presented by the prosecution. We prepared a similar list at the end of the prosecution's cross examination. We submit them at this time to be marked as Exhibit 632-A for identification. Also at the end of our direct examination case we prepared composit lists of various documents related to individual defendants. We prepared similar lists with respect to documents introduced at the end of the cross examination which we would like to present at this time. First, documents which pertain against the defendant List. This should he marked as Exhibit 633-A for identification.
PRESIDING JUDGE CARTER: I wonder if it wouldn't be better to just drop the "A" and give it a regular number?
MR. FENSTERMACHER: This will be 632 and 633.
The next documents introduced during cross examination against defendant Kuntze, which will be Exhibit 634.
Next, list of documents introduced during cross examination which pertain to the defendant Foertsch becomes Exhibit 635.
Those which pertain to the defendant Geitner become exhibit 636.
MR FENSTERMACHER: Those which pertain to the defendant Rendulic become Exhibit 637.
Those pertaining to the defendant Dehner become Exhibit 638.
Cross examination documents relating to the defendant von Leyser become Exhibit 639.
Cross examination documents incriminating the defendant Lanz become Exhibit 640.
Those relating to the defendant Felmy become Exhibit 641.
Finally, prosecution cross examination document relating to Speidel become Exhibit 642.
MR FENSTERMACHER: We are actually beginning the introduction of our rebuttal documents. The prosecution would like to announce in addition to the four witnesses called yesterday, the witness Ernst Korn will be called.
DR HANS GAWLIK: For the defendant Dehner. If your honor please, I object to the list which has been presented under the name of General Dehner. The first sentence in that list is wrong. It says the following documents of the prosecution have been offered in evidence during cross examination of the defendant Dehner. That is not correct. These documents have not been submitted during the cross examination of the defendant Dehner. Not one document has been submitted during the cross examination of the defendant Dehner. I draw the attention of the court to the list submitted under the name of Foertsch. We have the same three documents presented under the name of Dehner. These three documents were submitted during the cross examination of General Foertsch. I therefore object to the first sentence of the list not conferring to the facts.
MR. FENSTERMACHER: I thought I made it clear that this list of documents pertains to documents introduced during entire cross examination of the prosecution. Certain documents pertain to the entire cross examination of the prosecution, certain documents introduced during the cross examination of one defendant are also applicable to other of the defendants. That is true of the defendant Dehner.